Committee (2nd Day)
Clause 7 : Whether jury required
15: Clause 7, page 4, leave out, lines 22 to 24.
I rise to speak for the first time on the Bill. I was unable to be present at Second Reading, but I want to express my thanks to my noble friend Lord Patel for his generosity in incorporating my main points in his Second Reading speech.
I turn to this group of amendments, in which I have two with slightly different implications. We come to address the rules that deal with when a coroner must call a jury. The amendments would ensure that all deaths in custody in state detention, including deaths of those detained under the Mental Health Act and those held under the Immigration Acts, were automatically investigated at an inquest held before a jury, including those where death is presumed to be of natural clauses.
I should declare at the outset an interest in this point as a psychiatrist and a former Mental Health Act commissioner who spent far too many months of my life on various inquiries into homicides, untoward incidents and quality-of-care examinations in special hospitals’ regional secure units and local psychiatric units.
It seems that the new legislation weakens the current position in some respects, where some inquests following deaths in custody are held before a jury, although not all in the case of detained patients. The jury is at the coroner’s discretion but is held where the death occurred,
“in circumstances the continuation or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public”,
a phrase that has encouraged a coroner to call a jury where there is a suspicion of contributory neglect. It is, however, still common for a coroner to decide not to call a jury in the case of the death of a detained patient.
It is worth reminding ourselves at this point that juries are convened in only about 4 per cent of coroners’ inquests and the amendments would not extend that percentage much. The new provision states that inquests into deaths occurring in detention and custody will take place only before juries where the death was violent or unnatural, where the cause of death is unknown, where a member of the police is involved and where the death was due to a notifiable accident, poisoning or disease, or otherwise where the senior coroner believes that there is sufficient reason for doing so. It is therefore possible that significant numbers of deaths that would previously have been investigated before a jury will not automatically receive the same scrutiny.
On the face of it, the provision seems sensible. It means that apparent deaths of natural causes of aged people with terminal illness or those who are otherwise expected to die within a short time will not be dealt with in this way. I hope to convince noble Lords that that should not be the case and that there are good reasons for having a jury when people are in closed, locked institutions.
My anxieties arise from a current case, which I will mention, and from working as a psychiatrist in the past in mental health units remote from district general hospitals—indeed, all special hospitals and regional secure units, and many psychiatric units are remote—where I and many other psychiatrists experienced difficulties in getting adequate physical healthcare for our patients. I have had experience of sitting on inquiries and also of the reports made voluntarily to the recently defunct Mental Health Act Commission of the deaths of detained patients. We also know from social research about poor access to healthcare and the very high mortality rates of mental health patients.
A current case I want to mention is that of Mrs Sandra Allen, a 61 year-old woman who was detained in a north London psychiatric hospital under Section 3 of the Mental Health Act for a recurrence of her manic depressive illness. She died of natural causes—a heart attack—in 2006. The inquest was held without a jury. The coroner ruled that she died of natural causes which were unavoidable, but her children are challenging the verdict because they believe that their mother’s death could have been avoided with better care. They claim that she was neglected.
The circumstances were as follows: Mrs Allen, who was 61, died from a heart attack after choking on a sandwich which she had been left to eat unattended. She had no dentures and a long history of choking, possibly as a result of medication she was taking. The staff were inexperienced in dealing with the situation; they were unable to clear her airways and did not know how to operate the oxygen canister which was provided on the ward. She was still choking when the ambulance arrived; it waited several minutes outside the unit because the security guard was asleep and the ward was locked. The ambulance staff simply did not get in to help her in time. Her family has argued that the coroner was wrong to reject its request for an inquiry before a jury, since it felt that much of the psychiatric and physical care she received was unacceptable and contributed to her untimely death.
I can remember another very similar case: a patient of mine needed urgent coronary angioplasty; he was difficult to manage but I believe he could have been cared for on a normal hospital ward with psychiatric advice. The cardiac surgeon procrastinated under circumstances in which any other patient would have been treated as a matter of urgency. The patient died of a heart attack within a couple of weeks. Again, the finding was of natural causes.
When I was a practising psychiatrist, I often had great difficulty getting adequate specialist consultant advice for patients. Mental health nursing staff were often inexperienced in dealing with physical conditions and reluctant to refer patients to a district general hospital because of the stigma and fear that the patients generate, sometimes with the best of intentions.
Matters have improved considerably, I believe, in special hospitals and regional secure units, but it seems to me to remain crucial that relatives of detained patients who die in state custody, even when it appears to be a completely natural and expected death, should be exposed to a manner of inquiry which gives the public the greatest confidence. I have often been struck by the distress, anxiety and suspicion that relatives have when what is apparently a natural death has not been fully exposed to scrutiny. If the sister of David Bennett—sometimes called Rocky Bennett—had not articulated very clearly before a jury the circumstances of his death in a regional secure unit, I doubt whether the conditions there would have been fully exposed.
Reports of the recently defunct Mental Health Act Commission have exposed the difficulties in obtaining adequate care in many units. There are approximately 300 deaths notified to the commission every year from psychiatric units of deaths in untoward circumstances. That is quite a significant proportion of the number of all patients dying in psychiatric units.
There is a race and culture dimension to the problem. Black patients currently make up 30 per cent of patients detained in high-security psychiatric hospitals, 40 per cent of those in medium-secure settings. The black population is at much higher risk of diabetes, stroke and cardiovascular disease, and at an earlier age. They therefore have difficult responses sometimes to some of the drugs that are given in psychiatric units. It is crucial, of course, that they have good access to care but that we do not misinterpret deaths of detained patients from natural causes as due to poor care if they have had the best care and advice. Services must not only be doing their best but be seen to be doing their best.
The Disability Rights Commission report, Equal Treatment: Closing the Gap, highlighted the profound differences in smoking-related disease and increased mortality of those with learning disabilities and serious mental health problems, an unpredicted doubling of the rate of bowel cancer in people with schizophrenia and the very poor access to healthcare by people with serious mental illnesses and learning disabilities. We need to pick up when care goes wrong in closed units if we are to improve awareness and support families who want to understand what happened to their relatives.
Finally, it is worth commenting on the sharp decline in the numbers of deaths of detained patients in psychiatric hospitals, probably not because of better care but simply because the age profile has changed dramatically, and older, long-term patients are now cared for in care homes and nursing homes. This means that the number of patients for whom an inquest with a jury would be required would be relatively small.
I listened very carefully to the debates yesterday, and think it is important to make it clear that I am not trying to extend the coroner’s role of finding and establishing the cause of death into the more narrative areas that we were trying to avoid. There is no doubt that finding a cause of deliberate neglect or omission or commission of care is a very important part of a coroner’s fact-finding mission. The public need to have every confidence in a system which is as open as possible, and the public believe in juries. I beg to move.
My Lords, we are dealing with Clause 7, and it is helpful first to look at its structure. Subsection (1) provides that an inquest into a death,
“must be held without a jury unless subsection (2) or (3) applies”.
Subsection (2) sets out limited circumstances in which an inquest into a death must be held with a jury. Those circumstances are triggered only if the senior coroner has reason to suspect,
“that the deceased died while in custody or otherwise in state detention”,
and that the death resulted from an act or omission of a police officer or a member of a service police force, or that it was caused by,
“a notifiable accident, poisoning or disease”.
There is provision in subsection (3) for discretion that an inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so. However, the mandatory requirement for a jury is now limited by the Bill from what it has been. The purpose of Amendments 16, 17, 19 and 20 is to extend those categories.
It is notable that the European Court of Human Rights in the case of Jordan v the United Kingdom examined the state’s obligations under Article 2 on the right to life following a death in state custody. It held that the state must ensure that the deceased’s family are provided with the truth, that lessons are learnt to improve public health and that, if appropriate, criminal proceedings be brought. The European Court held in particular that an investigation into the death must be made on the initiative of the state and that it should not be left to individual members of the deceased’s family to bring civil proceedings.
The European Court held that the investigation must be independent, effective, prompt, open to public scrutiny, and should support the participation of the next of kin. If those conditions are not fulfilled, there would be a breach of the right to life set out in Article 2. The House of Lords, in the case of Amin, confirmed that judgment and established that these requirements should not only apply where state agents were actively involved in the death of a person, but where the death was alleged to have resulted from negligence on the part of state agents. It is our submission from these Benches that there should be an Article 2-compliant inquest in all cases where the state has failed in its obligation to protect life. I have already indicated to noble Lords the degree to which Clause 7 limits the circumstances in which a mandatory inquest with a jury can be carried out.
Amendment 16 would add to that limited number of people,
“a member of the security services”.
In the other place, an amendment was tabled in Committee that proposed adding “any other state official” to the list of those whose actions resulting in a death would trigger an inquest to be held with a jury. The Government argued that that amendment was too widely drafted. It was a Conservative amendment. Mr David Howarth, my colleague in the other place, said:
“If the Minister thinks that the amendment is too vague, I ask her about this specific case: is she against adding the security services to the list?”
The Minister, Bridget Prentice, said:
“That would be a far better argument than that for the general extension to state officials”.—[Official Report, Commons, Coroners and Justice Bill Committee, 10/2/09; cols. 212-3.]
That is what has inspired us to add,
“a member of the security services”,
to the list of people where an inquest with a jury must be held. We are encouraged by the Minister about that, although frankly I do not think that it goes far enough to meet the requirements of the European Court.
Amendment 17 would add to the circumstances something that is already existing law. We propose to add to the illustrations where an inquest must be held with a jury paragraph (d), which says,
“that the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public”.
The purpose of that is to repeat the existing law. The Coroners Act 1988 provided a requirement to summon a jury in those cases, so this Bill takes a step back in dealing with cases in which continuance or possible recurrence prejudicial to health or safety is concerned. The wording of the amendment was invoked in a 2007 High Court case, involving the deputy coroner of the Queen’s household, to ensure that an inquest occurred into the deaths of Princess Diana and Dodi Al Fayed. That was triggered by the ability of the paparazzi to behave as they did in the hours before the deceased came by their deaths. The inquest was ordered to be held in those circumstances.
Amendments 19 and 20 would add to the Bill,
“that the death otherwise resulted from an act or omission of a public authority”—
that is, a person or body who,
“would be so considered under Section 6 of the Human Rights Act 1998”.
In those circumstances, it is imperative that a jury be summoned for the purposes of hearing the inquest.
The jury is the most democratic institution that we have in this country. In modern times, the jury is more democratic than Parliament, in that it allows the voice of the people to be heard, to set the standards and to come to conclusions, and it is in those circumstances where state officials have misbehaved one way or another that the jury’s role is most appropriate. I support the amendment.
Amendment 18 would also extend the circumstances in the Bill for inquests to be held with a jury. There are two new instances: where the deceased was undertaking training carried out by Her Majesty’s forces and where the deceased was under 18 and serving in Her Majesty’s forces, and in both cases the death was violent or unnatural, or the cause unknown. I am indebted to the help of the Royal British Legion in formulating this amendment.
Military training can be conducted on a 24-hour basis, with individuals living on camp. Some training courses are designed to push people to their physical and mental limits. All of this may increase their vulnerability and necessitate additional safeguards. In the unfortunate case that something goes wrong, my amendment would allow for additional scrutiny of the conduct of the defence authorities, where this additional duty is owed by the state due to the nature of the activity. Similarly, for those under 18, additional safeguards are needed to ensure that increased risks due to age, immaturity and vulnerability have been assessed and reduced.
The Blake report, The Deepcut Review, included a recommendation that only when individuals reached 18 should they be engaged in full military duties, recognising that additional maturity is needed to cope with the strains of military life. Blake also recommended that the training environment of young people be extended and dedicated to their needs. Although these recommendations have not been taken forward by the Ministry of Defence, there is legislation in place to protect young people in the workplace, not least the Management of Health and Safety at Work Regulations, which provide additional duties to control the risks of young people at work, and the UN Convention on the Rights of the Child, which prevents those under 18 from being actively deployed.
My amendment would ensure that, where a death occurs, there is additional scrutiny into the circumstances and that the lessons learnt can be followed up and implemented. These safeguards would help to ensure fair treatment for the youngest members of the Armed Forces, in line with the undertakings in Command Paper 7424, The Nation’s Commitment: Cross-government Support to our Armed Forces.
I support Amendment 17, which the noble Lord, Lord Thomas of Gresford, has introduced very clearly. My contact with this issue stems from my membership of the Joint Committee on Human Rights, on which we spend a lot of time considering the issues that are before us this evening. It is hard to understand why the Government are limiting further the requirement for compulsory juries in certain instances, in particular the health and safety of the public or public interests. We have had evidence from a number of organisations, in particular Inquest, which had this concern. It talked about juries being fundamental to the democratic system. It said that they,
“in cases of contentious deaths are often seen by families as the key safeguard in terms of public accountability”.
In such instances, it is very clear that families, who may be extremely distressed at what has happened, want the assurance that everything is handled properly. The best assurance that they can have is that there is a jury to oversee the process by which the coroner looks into the death. I hope that my noble friend will consider this as a good example of a Select Committee and others putting forward arguments to which he will be inclined to be sympathetic.
I do not know whether it will be helpful if I outline to the Government the views of the Opposition on this matter. The noble Baroness, Lady Murphy, and all others who have spoken to the other amendments have made a very good case. We need to hear from the Government just what their reasoning is behind the provisions that they have put into Clause 7.
In another place, my honourable friend Mr Bellingham said:
“I entirely accept that having a jury sit with a coroner will be the exception rather than the rule. The overwhelming majority of inquests take place without a jury, and it would be completely impractical if that were not the case, because the costs and logistical implications of having a jury are significant”.—[Official Report, Commons, Coroners and Justice Bill Committee, 10/2/09; col. 207.]
He went on to say that in certain cases it was very important that there was a jury because it was important for the families of the deceased and others in helping them to come to terms with what had happened.
The Government came forward with Clause 7, which states at subsection (1):
“An inquest into a death must be held without a jury unless subsection (2) or (3) applies”.
We have been taken through those provisions by the noble Lord, Lord Thomas, who pointed out what the exceptions were. The noble Baroness, Lady Murphy, wants to add something to subsection (2). We are then told in subsection (3) that the senior coroner can insist on there being a jury when he thinks that there is sufficient reason for doing so, without spelling out what those sufficient reasons are.
The noble Baroness, Lady Murphy, told us that only in about 4 per cent of cases was a jury empanelled in these inquests. We need confirmation from the Government that that is the case. We also need to hear from the Government what assessment they have made about the effects of this clause. Will it reduce that 4 per cent down to a lower figure? More importantly—because it is rather vague—what do the Government think in this context about subsection (3), which gives the senior coroner a very wide power to make exceptions? Presumably, the Government made some assessment when they drafted this provision of what they thought might happen.
Before we take any of these amendments any further—and no doubt those proposing them will want to consider this—we need to hear from the Government what assessment they made; I presume that they did make one. Perhaps the noble Lord, Lord Davies, on behalf of the Ministry of Justice, can tell us what assessment was made on the effect of subsection (1) and the exceptions in subsections (2) and (3), particularly in subsection (3), which seems very vague. Will there be further guidance to the senior coroner on when he will exercise that judgment, or will it be left entirely to him? If so, do the Government have any idea about what the effect will be, or might it change in future?
My noble friend Lord Thomas of Gresford has with his usual eloquence outlined the arguments for the amendments in our joint names. However, there are one or two issues on which I shall probe the Minister further. In particular, I refer to the wording used in Clause 7(1), that an,
“inquest into a death must be held without a jury unless”—
then two exclusions are given—along with that of subsection (3), which says:
“An inquest into a death may be held with a jury if the senior coroner thinks … so”.
I cannot help but wonder whether the wording might have been more congenial if it had been, “An inquest may be held without a jury”, and then, in subsection (3), that an inquest “must be held with a jury if the senior coroner thinks it is a good idea”. It seems to me that one subsection contradicts the other, rather than giving an alternative or an option.
Perhaps of greater importance is subsection (2)(b), which refers to a case in which,
“the death resulted from an act or omission of … a police officer, or … a member of a service police force”,
to which my noble friend has added,
“a member of the security services”.
Increasingly nowadays we find that the functions, particularly of police officers, and sometimes of service police officers, are being carried out by officials in the private sector. For example, in my own part of the world there was, tragically, the murder of two soldiers outside Masserene Army barracks. It emerged subsequently that the security was provided not by the military directly or by the military police service but by private contractors. I shall not go into the details of the implications that that might have for the particular event, but there was an attack to which it would have been not unreasonable to expect some response from people who were not police officers or service police officers but private contractors acting as though they were police officers. Would these subsections apply to officials in the private sector who were acting in the place of police officers or service police officers, doing precisely the same job and doing it on behalf of the state and simply being employed because that is currently the way in which the Government seek to provide certain services?
I support the amendments in principle. I particularly support the amendment tabled by the noble and gallant Lord, Lord Craig of Radley, which makes an important addition to Clause 7. I wondered why the Government had not applied to leave out line 18, since they are proposing to leave out Clause 11. However, that is a small point, which will no doubt be put right at some later stage.
I have one caveat. The view of coroners to whom I have been speaking is that any considerable additions to the list of inquests that should have a jury will add fairly substantially to the delay and expense of running cases and that, therefore, if one is to have these additions one must bear that in mind.
If the Minister will forgive me, I support the Government on the wording of Clause 7(1) and (3). My recollection of the Coroners Act 1988 is that an inquest into a death must be held without a jury except in certain circumstances—the same situation. That is very important because, as the noble Baroness, Lady Murphy, said, only about 4 per cent of cases are with juries and there would be considerable pressure on coroners to hold a large number of quite unnecessary cases with juries if you did not have the starting point that you must do it without a jury.
Furthermore, under subsection (3) I take the view that it is very important that the senior coroner should have a very broad power to have a jury. I was personally rapped over the knuckles by the divisional court in the case to which the noble Lord, Lord Thomas of Gresford, referred. Sitting in my capacity as a deputy assistant coroner, I had continued that case on Princess Diana without a jury. It is very important that the senior coroner should have a board remit on this. I do not think that, as the noble Lord, Lord Alderdice, said, the “may” and “must” should be transposed or that that would be in the public interest.
At the risk of boring the House, I would like to refer to the debates and discussions we had in this House on the Corporate Manslaughter Bill. It was agreed then that the prison service should be made subject to the provisions of that Bill, largely on behalf of all the concerns people had that prison management somehow was able to escape from the normal supervision that would have been expected in cases where it might have contributed to death. During the course of that debate, the whole question arose of the families, and the way the families saw delays over inquests, and the fact that they went to inquests expecting more than an inquest is designed to give—which was clearly brought out in the debate yesterday, when I was unfortunately unable to be here.
One of the reasons I welcome the formation of a more formalised coronial service, if that is right, is that I suspect that when coroners involved in a case relating to deaths in custody come to decide whether this is a case that ought to go to a jury— because it contains aspects that deserve something more than a normal inquisitorial process—they will be better informed, and therefore the doubts that exist over the system at the moment may be ameliorated. However, as the noble Baroness, Lady Murphy, said, there will not be all that many, but it is important that the whole system is subject to overall review, rather than it being left to be a sort of post code lottery. In this way, relatives can expect that the jury system, in which they as citizens have more confidence than a non-jury system, will result in fair rights, not depending on where they happen to be.
I speak briefly in support of the spirit of all the amendments in this grouping. I have been fascinated by the arguments put forward by noble Lords, and I am pleased to say that most of the points I wanted to make have already been made. I do, however, wanted to reinforce some of the comments made by my noble friend Lady Murphy about black and minority ethnic people in respect of this particular issue.
As she pointed out, black people are very much over-represented in the mental health system and in the prison system: they are more likely to be sectioned under the Mental Health Act and more likely to be among those detained and awaiting deportation under the Immigration Act. In fact, black Britons are over 44 times more likely than their white counterparts to be detained under section in the mental health system, despite having similar rates of mental ill-health as other ethnic groups. Especially relevant here, as my noble friend Lady Murphy has pointed out, is that people of African-Caribbean descent are much more likely to be given high doses of potent behaviour-modifying drugs and are much more likely to be physically restrained. This has led to a number of fatal, tragic outcomes: she mentioned the case of Rocky Bennett as one of those.
These issues are not exclusively the concern of black and minority ethnic communities—of course they are not. That has been amply illustrated. I do think, however, as is often the case, what has had a negative impact on one section of society indicates that the system is not working as effectively as it should for people in general—particularly those in vulnerable positions. Currently Clause 7 of the Bill provides that deaths in detention—as has been said—will be heard before juries only if a very limited set of circumstances is satisfied. This is not sufficient to ensure that such deaths in the mental health sector or other public authorities are fully and independently investigated, or to give the public confidence in the system. Again, this was pointed out earlier.
Juries do give a degree of openness and transparency required in these tragic circumstances, and they are fundamental to democracy, as they represent the only opportunity where ordinary people—independent of state authorities—can participate in the judicial system. This is particularly important where the state is implicated in a death, or where there is even a question mark about the possible role of the state in a death, and it is particularly important also for those who come from vulnerable communities and lack confidence in the system because of their negative experiences.
Limiting the calling of juries to the types of cases outlined currently in subsections (2) and (3) of Clause 7 is insufficient. It would mean that cases of negligence or gross negligence, neglect and systemic failures might not be heard before juries, and this will further damage the confidence of the public and the families, and will not ensure that that sense of independence and impartiality is in the inquest system. All inquests into deaths in state custody or detention should automatically be brought before a jury, in my view. I hope we will get a further chance to discuss this shortly.
I am grateful to all noble Lords who have spoken in this interesting and important debate. I will try to establish some context. The noble Lord, Lord Henley, invited me to do that in numerical terms. That will stretch me somewhat, but I will do my best. He suggested that inquests that take place with a jury made up about 4 per cent of cases a year. Our figure is 2 per cent. It means that fewer than 500 inquests across the whole of England and Wales take place with a jury. We do see the provisions in this clause increasing the number of inquests with juries. It may go up from 2 per cent to 3 per cent. There will be an increase, because of the provisions of the Bill designed to meet the representations that have been made during this debate today, about areas where real concerns have been expressed and where the value of juries has been extolled. Of course, noble Lords are absolutely right when they put forward that principle; it is an important part of a democratic society.
However, the noble Lord, Lord Alderdice, raised the question of what the principle is behind this clause, and whether it was back-to-front. The noble and learned Baroness, Lady Butler-Sloss, answered that point better than I could. The presumption behind the legislation is the practice of the nation at the present time and always has been: namely, the vast majority of inquests take place without a jury, but provision needs to be made for a jury in significant and particular cases. The point about Clause 7(3) in those terms is that it makes provision for judgments that a jury should sit. But of course we anticipate, under our proposals, that the vast majority of inquests will continue, as they have always been, to be determined by a coroner sitting alone, rather than with a jury. After all, coroners are highly knowledgeable and increasingly well trained.
We are intending to improve that training, of course, with the provisions in Clause 30. With the coroners’ independence of mind, I am content that they should be able to continue to hold most inquests sitting alone, with a jury present only where there is a clear need for the additional level of public scrutiny. I will come on to the representations made during this debate about situations in which that additional level of public scrutiny would take place. Clause 7(3) contains provisions to give coroners discretion to summon a jury if they feel there is sufficient reason for doing so, even if the death concerned does not fall into the categories mentioned in Clause 7(2). There is also the safeguard in Clause 32(2)(g) relating to appeals where an interested person may appeal to the chief coroner if he feels that the coroner should exercise his or her discretion differently.
That is the context behind this clause and the propositions in the Bill. I want to look at the detailed arguments advanced about cases where inquests should be conducted with a jury. Of course, I understand the thinking behind Amendment 16, tabled by the noble Lord, Lord Thomas, which requires that an inquest into the death of a person caused by an act or omission by a member of the security services should be held with a jury. We are not aware of any such deaths being subject to inquests in the past 50 years, so we are discussing a marginal provision, so marginal that, although the noble Lord, Lord Thomas, advocated his case on principle, I do not think we need it. If such a death were to occur, and given the fact that we have not experienced one in the past half century, it is surely preferable and sufficient to allow coroners to use their discretionary powers under Clause 7(3) to decide whether they wish to conduct an inquest with a jury in those circumstances. After all, the coroner will be aware of how exceptional the circumstances are and will therefore exercise careful judgment.
The second amendment tabled by the noble Lord, Lord Thomas, could lead to a substantial increase in the number of inquests that would require a jury to be summoned, given that there is a wide range of circumstances in which the provision could be said to apply. I shall make the most obvious point. Road traffic deaths in this country are too high. We have had considerable success in recent years in reducing fatalities on the roads against a background of road traffic increasing almost year by year, but road traffic deaths are still numerous. They run into the thousands. Is it suggested that almost all of them should come within this provision? After all, almost all of them involve issues of public safety. By definition, we learn from deaths on the road, and public policy is affected accordingly. However, it is a big leap from a necessary learning process with regard to accidents to a provision that might lead to the interpretation that because every road death potentially has some implication for public policy, in all such cases inquests should be held with a jury.
I do not have that figure. The noble Lord is arguing for the necessary extension, and I am saying that his amendment leaves open the interpretation that if there is an element of public safety or public concern, that might necessitate the coroner deciding that a jury would be necessary. I do not think that that is a basis on which we can proceed. Leaving aside the additional resources that would be required if this criterion came into play, alternative measures are being put in place substantially to improve the public protection role of coroners. That would surely be more effective than saying we need a jury in such circumstances. We are concerned to improve the role of coroners in public protection, but that is different from accepting an amendment that has significant resource implications.
The Committee will be aware of changes made last July to Rule 43 of the Coroners’ Rules 1984, which gave enhanced priority to coroners’ reports relating to the prevention of future deaths. Early indications are that these rule changes have already made a positive difference to the coroner’s public protection role. My right honourable friend the Lord Chancellor will shortly be publishing a summary of those reports and the responses to them. These provisions will be further enhanced under measures being brought forward at paragraph 6 of Schedule 4 to the Bill.
I believe the Government’s position is preferable. It is to enhance the public protection role of coroners by giving greater prominence to their reports to prevent future deaths, rather than insisting that they hold such inquests with a jury, which is the concept behind the amendment. I accept the motives behind it, which the Government share. Coroners have a role in improving the quality of public perception. In circumstances such as these, bereaved families want to feel that lessons have been learnt if the death occurred in circumstances where public policy could be improved. We will provide for that through coroners’ reports.
Amendment 18 was spoken to by the noble and gallant Lord, Lord Craig, who was strongly supported by the noble and learned Baroness, Lady Butler-Sloss. The Committee will be aware that for the most part coroners sit alone when considering deaths of military personnel on active service. I do not think it can be contended that that has stopped coroners successfully investigating all such deaths with a commendable degree of vigour, thoroughness and independence or, on occasion, passing judgments and making comments critical of the Government. I do not think the system can be criticised in that respect. There is no reason to believe that coroners do not or will not deal with the deaths of military personnel undertaking training or under the age of 18 with any less rigour. There is no reason to presume that coroners will do anything other than approach such deaths with the same degree of responsibility and the features that I have outlined as they already do for other military deaths.
The Bill already contains provisions giving coroners discretion to summon a jury if they feel that there is sufficient reason for doing so, even if the death concerned does not fall into the categories mentioned in subsection (2). There is also the right of appeal to the Chief Coroner, if the family feels that the coroner should exercise his or her discretion differently. I consider that the anxieties that have been expressed in these amendments have been covered by the Government’s approach, and that noble Lords should have confidence in the position outlined in the Bill.
I would also suggest that the issue of whether juries should be summoned in certain types of cases that involve the deaths of military personnel, particularly those of a young age, is one that the Chief Coroner may wish to address in any guidance that he or she may issue. The Chief Coroner will be aware of anxieties and public disquiet on this score, and of course this debate today is evidence of concern in that area. We would expect that the Chief Coroner would address such an issue in guidance that was given.
On the first amendment, ably moved by the noble Baroness, Lady Murphy—Amendment 15—I contend that there is no useful purpose in maintaining the status quo in relation to prison deaths and requiring that all deaths in prison, of whatever cause or origin, should be investigated by way of an inquest held with a jury. If there is a reason to suspect that the death was for a violent, unnatural, or unknown cause, the coroner will be obliged to hold an inquest with a jury. I do not see any need for a jury inquest where the death occurred of wholly natural causes in wholly non-suspicious circumstances. I do not see the need for a jury inquest for the death from wholly natural causes, for instance, in a prison hospital, when a similar death in a general hospital would not even warrant an investigation at all.
I accept that there would be an inquest into a death in a prison hospital—and the coroner may feel the need to call a jury in such a case—because of concerns about the level of care that might emerge from investigations. That certainly would occasion an aspect of public policy concern and we would recognise the importance of that. If that did arise, the discretionary powers in Clause 7(3) mean that of course the coroner could indeed summon a jury.
Finally, on Amendments 19 and 20, there is no need for there to be a jury in any but the most serious cases. These amendments would mean that in any and all cases where it may be considered that a failing on the part of the state, a public authority, or their employees, contributed to a death, there would need to be an inquest held with a jury.
Having a jury in every instance where a public authority might be implicated would certainly increase the number of jury inquests by a considerable factor. The noble Lord, Lord Alderdice, quoted a particular instance where people are acting almost as surrogate agents of the state, as I understand it; not employees, but private sector individuals operating in a capacity on behalf of the state, which raises significant issues. It would not be automatic, but the coroner could certainly use his discretion to summon a jury in such a case. We would expect a coroner to have regard to the factors that the noble Lord outlined, and of course it might well be that this would condition the coroner to think that he ought to summon a jury.
A jury inquest, however, in all the circumstances that have been contended by the amendments is, I maintain, unnecessary and adds little to the process. The costs and delays involved in holding jury inquests in all such circumstances would certainly be untenable. The noble Lord, Lord Henley, began by saying that he wanted the context on numbers; I have not got an estimate of what the costs of the amendments would be—in some cases they might be not great—but it is clear that in some cases a door might be open to a very great increase indeed in the number of inquests with juries and, therefore, very substantial costs.
We anticipate that further guidance will be issued and provided by the Chief Coroner as to the circumstances when the coroner may use his or her discretion. We trust the coroner service, with its additional and enhanced training, and we have seen evidence of the thoroughness with which the work is done. The coroner, of course, has the capacity to summon a jury when it is considered necessary. Beyond that, we will have a Chief Coroner in place who will issue guidance and who can be appealed to, if the bereaved consider that a jury should have been summoned.
On that basis, I hope that noble Lords will feel able to withdraw their amendments on the basis that we have had a pretty thorough investigation of this issue and the Government, in forming the legislation, have considered these points very thoroughly.
It is interesting to hear the Minister use cost as an argument against these provisions, when of course the costs have been plonked upon local authorities. For once, the Government are not defending their own resources.
I return to Amendment 17, where he conjured up the idea of the costs of numerous inquests in road traffic accidents. As I indicated in opening, the amendment simply puts back the existing law—namely Section 8(3)(d) of the Coroners Act 1988—which provides that a jury must be summoned in circumstances where,
“the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public”.
That is precisely what the amendment states. As far as I am aware, the coroner system has not so far been overwhelmed by motor accident cases. The suggestion that we are opening the door to a huge increase in inquests in those particular cases simply does not arise.
The Joint Committee on Human Rights asked the Minister, in the course of the preparation of this Bill, to explain why the Government considered it appropriate to remove those existing provisions for compulsory jury inquests in cases where health and safety of the public might be at risk. The Minister explained that it was rare for juries to be appointed under the existing provision. The reason that she gave was that there was confusion about what it might mean in practice. Since it was rare, the Government considered that it was no longer needed and that it was sufficient to rely on the discretion contained now in Clause 7(3).
The Joint Committee on Human Rights then asked the Minister to explain in what circumstances the coroner’s discretion to summon a jury would be exercised, and whether this could include cases where there might be a risk to the health and safety of the public, and a report from the coroner, which will be provided under paragraph 6 of Schedule 4, might be necessary to eliminate or reduce such a risk.
The Minister told the Joint Committee in evidence that the coroner’s discretion to summon a jury would be exercised where it was felt that the public interest in the case was such that the coroner considered the additional scrutiny and independence of the jury would be beneficial, but that was not likely in the circumstances where health and safety was involved. On the one hand, the Minister's response to the exclusion of the existing law was that the coroner could exercise discretion to have a jury, but on the other hand, the Minister said that it was unlikely that the discretion would be exercised in those cases, which is a completely confusing answer. It is no surprise that the Joint Committee recommended that the Bill be amended to reflect the existing legal position.
The noble and learned Baroness, Lady Butler-Sloss, referred to the discretion of the coroner and it is interesting to see how even that discretion has been limited by the Minister's answer. However, I am sure that any coroner in the future and any Chief Coroner will take heart from the Minister’s words that if there were a problem in health and safety cases no doubt a jury would be summoned under Clause 7(3).
I heard what the Minister said about Amendment 16, where we sought to add the security services to the list. I was pleased to hear that there has apparently been no incident in 50 years, but the greater degree of participation that we have seen over these past few years of the security services in operational matters may very well lead to a situation where an inquest with a jury would be desirable. However, again, the coroner considering that would no doubt turn to Hansard and see that the Minister would approve of a jury in those cases.
As always, I have been stimulated and surprised at the elucidation of the law by listening to colleagues in the Committee discussing these amendments. I must confess that it had not sunk in—I had not clocked—that there was a possibility of going to this new figure, the Chief Coroner. For some of the cases I can immediately think about, that might address the issue of the public having somebody to take their concerns and anxieties to. I had read the legislation to mean that it was much more restrictive, whereas I am not entirely sure, after listening to the noble and learned Baroness, Lady Butler-Sloss, that that is the case. I am not sure that I quite understand the implications of the Minister's response.
I am sorry if I have been more cryptic than clear, but right at the beginning, if the noble Baroness will recall, I was pressed on the question of figures. In terms of clarity, currently there are 2 per cent of cases and we expect that to increase by about 50 per cent. That is the Government's broad estimate.
I apologise that I got the figure wrong. I must have had an earlier figure from when the 1988 Act was first enacted or from the next 10 years or so. I am still not entirely convinced that members of the public and relatives of patients and prisoners who die under distressing circumstances that are not obviously violent or untoward deaths would have reassurance without a jury. I am not sure at the moment that the Minister's response has entirely addressed that problem. We are talking about a very small number of patients and prisoners who fall into that category, not huge swathes of people who are detained and die of natural causes who do not require investigation. Having said that, I will take away what I have heard, read it in greater depth and return later on Report.
Amendment 15 withdrawn.
Amendments 16 and 17 not moved.
18: Clause 7, page 4, line 29, at end insert—
“(d) that the death occurred while the deceased was undertaking training carried out by Her Majesty’s Forces, and either—(i) the death was a violent or unnatural one, or(ii) the cause of death is unknown, or(e) that the death occurred while the deceased was serving in Her Majesty’s Forces and under the age of 18 years, and(i) the death was a violent or unnatural one, or(ii) the cause of death is unknown.”
The Minister made the point that the Chief Coroner would issue guidance. It would be helpful if he would clear up whether the Chief Coroner himself would be subject to some form of regulation or order on the types of guidance that he should issue, because it would be very helpful to know that he could be guided in that way. I beg to move.
I apologise to the Committee and to the noble and gallant Lord, because I thought we had concluded the debate. I quite understand his point. I cannot be precise about the present position, but I emphasise that areas that cause significant public concern will be an issue. First of all, coroners themselves will exercise their judgment in this context. The Chief Coroner's position will be one in which guidance will be issued on such concerns in order that coroners are advised about the issues. Of course, the noble and gallant Lord has indicated one area of public concern, which might well justify guidance from the Chief Coroner. We will be looking at that position in due course, and during the course of the Bill we will seek to be more explicit. But at this stage, when we are considering the amendments and judging the general perspective of the Committee, it would scarcely behove me to seek strict guidance from the Box in circumstances where I could presume that they had it, because we are still considering the legislation. The noble and gallant Lord will appreciate that the guidance which is then issued will take into account the passage of this Bill.
Will the Minister help me? I think that I am not the only noble Lord who is slightly uncertain about this, given what the noble Baroness, Lady Murphy, said. I thought that I heard the Minister indicating that families who were concerned could make some sort of representation to a senior coroner in respect of the holding of a jury-attended inquest and that if they were dissatisfied with that they would have this new route of making representations to the Chief Coroner in order to ensure that something of that kind could happen.
I may have misheard the Minister, but I would be grateful if he could clarify whether I have taken him correctly and that there will now be two routes. Given this provision and his comments, if families wish there to be a jury-attended inquest, could they make representation to the senior coroner and, subsequently, to the Chief Coroner?
Of course, these would be exceptional circumstances, as the noble Lord will appreciate. To make the point that I have just been pressed on, the role of the Chief Coroner is, first, to produce the guidance that enables coroners to exercise their functions accurately and effectively. In exceptional circumstances, an appeal to the Chief Coroner is possible. He would consider such cases. The context would be one in which some very particular features obtained. I come back to the noble Lord, Lord Thomas. There has not been such a case in 50 years, but if we had one that was conducted without a jury, I have no doubt that it might look exceptional and an appeal might well be made. Of course, there might be good reasons why it would be so. The noble Lord would always give credence to that fact. Nevertheless, it is in such circumstances that an appeal is possible. In answer to the noble and learned Baroness, Lady Butler-Sloss, training will be improved, but will be under the existing auspices and structure.
Amendment 18 withdrawn.
Amendments 19 and 20 not moved.
Clause 7 agreed.
Clause 8: Assembling a jury
21: Clause 8, page 4, line 39, leave out “six, seven, eight or nine” and insert “not less than seven nor more than eleven”
This amendment was put forward by the Joint Committee on Human Rights and is supported by Inquest. For no reason that can be ascertained, the Government propose to change the number of jury members required at an inquest from not fewer than seven or more than 11 to six, seven, eight or nine. The Joint Committee on Human Rights asked the Minister to consider whether public confidence in the outcome of any relevant inquest—and in the process as a whole—will be diminished by the proposed reduction, particularly in cases where the convention rights under Article 2 are engaged. The Minister told the Joint Committee in evidence that no concerns had been raised about this issue in public consultation, but he said no more. He did not justify it in any way. When we look at the Explanatory Notes for guidance, we see that they say on Clause 8 that,
“the nature of the inquisitorial task”,
that inquest juries,
“are required to undertake means they do not need to be of the same size as juries in the criminal courts”.
Why not? The issues that are involved concern someone’s death. Juries are to be summoned, in accordance with the Bill, only in circumstances where agents of the state have caused, or may have caused, that death. There is an even greater need to ensure that the decision-making remains of a high standard.
We submit that it is wholly wrong for issues as crucial to the public interest as the deliberate killing of a civilian by an agent of the state—and noble Lords know the case to which I am referring—to be determined by a jury possibly consisting of as few as six members. What is the purpose of the reduction? The limited research that has been done in other jurisdictions into the composition of juries has discovered that the best quality of decision-making is found when there are 12 members of a jury, who discuss all the issues. That is what the research has shown. We have operated for many years with much smaller juries in inquests, but I can see simply no reason to reduce them as proposed in the Bill. I beg to move.
I support this amendment and have put my name to it. I have a concern about the way in which a group of people behaves when its number becomes very small. If you have a group of only six people, you do not have the ability for someone to hold a balance. In a very small group, if one person feels outside the group, it is quite easy for them to feel intimidated and, perhaps, to begin to doubt their own sense. As the noble Lord, Lord Thomas of Gresford, has pointed out, the evidence shows that decision-making is sounder when a slightly larger number of people is involved. I would be interested to know the reasoning. We now have compulsory jury service for a much wider base of the population than previously, so I do not believe that it can be because there is difficulty in getting a jury when one is needed. The marginal cost of having the extra people on the jury must be so small as to be relatively insignificant.
Of all the events that can ever happen to anyone, death is the most final and absolute. Where somebody’s life has been taken by the wrongful deed of an agent of the state, nothing at all can be done to bring that life back. If people have been defrauded or have lost all their goods or their livelihood, there is at least the possibility of compensation, however terrible the event has been. With death, there is absolutely nothing. Compensation to the family does nothing. It papers over the cracks that will remain in their lives for ever as massive gaping holes. If we are looking at somebody’s death, particularly where there is concern about deliberate killing, we must make sure that the jury is in the best position to make the best quality of judgment that it can.
When I saw from this amendment the alteration to the law that the Government want to make, it seemed that it could have the effect only of diminishing public confidence in the jury system. That point has already been made. One would seek a powerful explanation from the Government as to why they are making this change. It looks like tinkering for no good reason whatever and with one very serious adverse consequence of lowering confidence.
I, too, support the amendment, which clearly and simply puts back the present situation. To my knowledge, there is nothing wrong with the present system. I have not come across any criticism of it. Unlike a jury in a criminal trial, which requires 12 members, the current situation requires a minimum of seven. It is not necessary to have 11, and there may be any number between the two. However, to bring the number back down to six, seven, eight or nine means that if there is dissent at six, the jury would be unable to do its job because at least six of the jury must agree under Clause 9(2)(a). A number of six would not make it possible for the jury to have a disagreement. A jury of seven would be very difficult if there was a disagreement. Just as the noble Lord, Lord Neill of Bladen, has said, the significance of a jury will be diminished if, out of only seven people, one or possibly two disagreed. There is no good reason to change this. If something works, why drop it?
Will the noble and learned Baroness give way? I have listened to the arguments around the Committee. I have no doubt that the noble Lord, Lord Henley, would support them—or perhaps he would not. Whether he does or does not, I am persuaded that we need to look at this again. If the noble Lord, Lord Thomas, will withdraw his amendment tonight, I will take it back to the department and hope to come back with a positive decision for those who have spoken tonight.
I am sure that everyone is grateful that the Minister is going to have another look at this, but before the noble Lord withdraws his amendment, I want to underline what the noble Lord, Lord Neill, and the noble and learned Baroness, Lady Butler-Sloss, said about what the Government are doing: they are diminishing public confidence in the whole jury system. I ought to point out to noble Lords that the Government’s desire to diminish public confidence in the jury system is probably a strong motive for them.
I am sorry that the noble Lord has said that. This has nothing whatsoever to do with diminishing the role of the jury in the English legal system. I do not pretend that the arguments were the strongest in the world, but the noble Lord has compelled me to say what they were.
There have been problems in a number of coroner districts with summoning jurors. The process is not centralised, as it is in the Crown Court, and we do not wish to create a new administrative burden by making it so. There have been occasions when inquests have had to be adjourned, causing unnecessary delay to bereaved families.
Another argument that could be prayed in favour—again, I do not argue it strongly—is that the purpose of an inquest is to establish the factual matters set out in Clause 5. Jurors, like coroners, do not have to make judgments between the merits of arguments of opposing parties. They do not award costs or make recommendations in respect of costs. Neither they nor the coroner can make an enforcement judgment or order. They do not determine anyone’s civil rights or obligations for the purposes of Article 6. At the most basic level, coroners and juries simply do not sit in judgment.
Those two arguments have led us to putting those numbers into the Bill. However, as I said when I got to my feet the first time—and I hope that this is acceptable—I am persuaded by what I have heard so far that there is a strong argument the other way. In order not to delay the Committee any further, I ask the noble Lord, when he is ready, if he will, to withdraw the amendment and we will come back to the matter.
I am interested in the first reason given by the Minister because, going back to my early years, as I mentioned, I worked in a coroner’s office. I recall that it was customary to pray a tales and get the necessary numbers for a jury by simply going around the town and finding people. Perhaps that is not the best way of doing it.
While welcoming the Minister’s indication, I have one more point. The noble Lord, Lord Dubs, before he had to leave, asked me to mention his Amendment 22. The Bill could currently mean that you could have a decision by coroner’s jury of 5:3, which is not much more—only one more—than a simple majority verdict. The noble Lord, Lord Dubs, representing the Joint Committee on Human Rights, had asked to insert that the minority in any circumstances should consist,
“of not more than two”.
I ask the Minister to consider that amendment as he considers the amendment that has been moved.
Amendment 21 withdrawn.
Clause 8 agreed.
Clause 9 : Determinations and findings by jury
Amendment 22 not moved.
Clause 9 agreed.
Amendment 23 not moved.
24: After Clause 9, insert the following new Clause—
“Death of a minor: possibility to exclude press from inquest
If the deceased is a minor, the senior coroner responsible for the inquest may exclude the press from the inquest if such exclusion is in the interest of surviving siblings of the deceased.”
The amendment concerns the death of a minor and the possibility of excluding the press from an inquest. We have a charter for the bereaved. In 1971, the Brodrick committee on death certificates and coroners recommended that the coroner needed discretion to hold an inquest in private and to balance public interest against private grief.
The grieving process after suicide, especially when the death has been of a young person, is often different in nature from the grief after other causes of death. The fact that the loved one’s death involved an element of choice raises painful questions that do not necessarily arise when the death has been from natural or accidental causes. The grieving is characterised by agonising questions and a search for some explanation of what happened. Those bereaved often feel a strong sense of guilt—indeed, abandonment—and rejection.
Legal processes can make this worse, particularly when there are delays in an inquest and communication with the coroner’s office is difficult. Giving evidence and public reporting have been shown in studies by Biddle and Wertheimer to be particularly problematic. The feeling of guilt is worsened by questioning in public, and the process can induce stigma and shame. These are worsened by public reporting of highly personal information.
In 2006, the Coroners Bill, published in draft, contained new powers for coroners to impose anonymity in any case where the coroner believed there to be no public interest in the names of families being made public. Consultation on this covered adult and child deaths, so it is understandable that on balance it was not pursued, because it might raise an unfair expectation among families when it should be used only in exceptional cases. The Press Complaints Commission code of practice has also been amended since that time and now includes an important provision to avoid intrusion into grief and shock.
The Bill helpfully has provision in Clause 36(3)(b) for witnesses under 18 to give evidence in private to try to lessen the ordeal and to improve the evidence that they give. I am sure that everyone will welcome that. It also provides for a person’s name to be withheld under the coroner’s direction, as specified in Clause 36(2)(e).
In a letter to Madeleine Moon MP on 23 March 2009, the Minister in the other place, Bridget Prentice, described the provision as applying when it is needed to protect that person’s safety. Therefore, it would mainly apply during inquests into the deaths of UK Special Forces personnel or when witnesses and bereaved families need to remain anonymous to protect their safety. Of course, on the other side of the coin, many families want to expose the horror of the death—for example, after carbon monoxide poisoning from a faulty gas appliance, where there has been a failure to diagnose a life-threatening condition or where there is a question of culpability.
Where families wish to talk to the press, they should of course be allowed to do so. What I am asking for is consideration for the surviving siblings of the deceased. They have feelings of culpability, and possibly even inadvertent complicity, in the death, which can be even more acute than in more adult members of the family. For example, they may think, “If only I had not gone out”, “If only I had told Mum about that remark made in confidence”, “If only I had asked who the internet friends were”, and so on.
At school, the child can be subject to desperately cruel remarks, sometimes from other children repeating comments overheard at home, such as, “They’re a strange family”, or, “They blame the mother”. These can be inferred from reading newspaper reports, often in the local paper, which provide details within the Press Complaints Commission code of conduct. Sadly, our experience in Bridgend, before the code of conduct was amended, was that some statements appeared in the press that had not been made at all. There had been a misinterpretation in the reporting. This caused enormous distress to families. I do not suggest that the press are breaching the new code; they are not. We had bad experiences previously, but press reporting seems to have improved. However, we have seen friends of a dead teenager goaded to disclose details about the deceased or to supply a photograph. Sometimes the first time the bereaved see the picture is when it appears in the papers.
The grieving relatives of a suicide victim are themselves at increased risk of suicide. The Children and Young Persons Act 1933 gives coroners the power to prohibit publication in newspapers of the name of a child in relation to inquests. This appears to be limited to living children and does not apply to the name of the dead child, yet the sibling is of course easily identified because they usually share the same surname and, in a small community, they are often known to have been at the same school.
In 2008, one in five of the 4,698 complaints to the Press Complaints Commission related to intrusion into privacy. In the experience of Bridgend, PAPYRUS—a UK charity committed to the prevention of young suicides—found that,
“judgment by many journalists was based on their personal reaction to news, revealing a lack of understanding that vulnerable young people could become severely distressed, suicidal even, by reading that another young person had killed themselves”.
A crucial aspect of modern reporting is that news is now on the internet immediately and is archived, effectively becoming available for ever.
Bereavement for any child is a cruel wake-up call to the cold realities that lie beyond childhood years. It is like a rapid removal of the comfort blanket beautifully hemmed with childlike ideals. Sadly, there are some realities that we cannot shield our children from, but exacerbating and compounding their grief when their siblings die is something that we can and should think about preventing. I believe that it should be a priority. The purpose of my amendment is to allow the grieving family to be given a choice and the coroner to have the power to do this. I am not saying that inquests on all children should normally be held in private and I hope that I have explained adequately the purpose of my amendment. I beg to move.
The very presence on any amendment of the name of the noble Baroness, Lady Finlay, normally has me agreeing with it before I have even read it, so greatly do I respect her judgment on the range of matters with which she frequently enlightens us. I am speaking briefly now not because I am against this amendment, but because it worries me a bit.
I fully understand that sometimes the press have behaved outrageously—we have all seen it. I have no particular brief for the press, because many times they have reported a sudden and perhaps particularly bloody death by murder or in a road accident, and I have seen them ask members of the family, “How do you feel?” and things of that kind. I agree that that is very bad behaviour indeed. On the other hand, I am nervous about banning the press. We are an almost-free country—I would not say that we are completely free, but we are pretty free—and that is very much allied to the fact that the press are able to observe and report what they think to be right. I have also seen reporters with great sensitivity dealing with cases that we are all worried about.
My question is, how does the coroner know, prior to the particular circumstances, whether the press will act in such a way? I am bothered by another question. If there is a reason to seek to ban the press because you assume that they will behave badly—and perhaps that assumption is absolutely right—if there are no siblings, you would not be able to ban the press anyway. I do not understand why that is in the amendment. If a coroner is certain that bad behaviour is going to happen, and it is going to be so bad that it must be stopped by banning the press, the fact that the person who has been killed or has had a very bad accident has no siblings would rule out a ban anyway. I seek answers to these concerns. I may support the amendment all the way—as I said, I usually support anything from this quarter—but I am troubled on those points.
This amendment presents certain difficulties. It would be desirable to have this power available, but in exceptional circumstances. The family courts have now been opened to the press, but judges have the power to exclude the press in exceptional circumstances. The welfare of children in the family law system is paramount. It is very important that we should recognise, with regard to the welfare of child siblings of a child who has died—particularly a child or young person under 18 who has died in the manner of the very sad deaths in Bridgend—that the effect is absolutely devastating.
There are various ways in which this might be dealt with. Under Clause 36(2)(e), I hope that the,
“provision for a senior coroner to have power to give a direction, in proceedings at an inquest, allowing or requiring a name or other matter not to be disclosed except to persons specified in the direction”,
would meet the need for what I might call the muzzling of the press in appropriate cases—if I have read that clause correctly. That would seem to be the more suitable way of dealing with the majority of cases. However, the noble Baroness, Lady Finlay of Llandaff, has made a powerful point for a small minority of cases where perhaps the local as much as the national press might not be able to contain themselves. She was talking about exceptional cases.
Perhaps I may hypothesise on what the noble Baroness, Lady Knight, said. I can see the situation arising in which the family would say to the coroner, “We have already had the press around us on this suicide. We are desperate that the press behave themselves, and the only way for that to happen is not to allow them to come into the inquest”. Therefore, I see this issue being brought by the family, or by the lawyers or friends of the family, to the senior coroner at the start of an inquest rather than during the hearing. I can see an exceptional circumstance but I should not have thought that it would be appropriate for most siblings. Therefore, I believe that the press should be there but with the requirement that they cannot publish the name or any facts that the coroner says they cannot publish.
I, too, start from the premise that anything proposed by my noble friend Lady Finlay is almost certainly correct. However, I have a problem here which is different from the one that has been mentioned. The thrust of the noble Baroness’s argument depends to a very large extent on cases of suicide, but this provision is not written in terms of suicide. I may be missing a very obvious point but it is not linked to any section of the Bill that refers to suicide; it is simply a proposed new clause that deals with the death of a minor. In this context, the only interests being considered are those of the surviving siblings. It is not difficult to imagine cases in which, due to the parents’ mental state, publicity about the death of a young child will be unbelievably distressing. Here, we are picking out the interests of one class of people, whereas, as the noble Baroness, Lady Knight, said, perhaps we should be thinking of amending the Bill by using better language relating to exceptional circumstances. My plea to my noble friend Lady Finlay is to take away the amendment and to see whether it can be drafted in a tighter way, specifically limited to very special circumstances, of which suicide is the outstanding example.
I, too, understand the force of the arguments that have been advanced by the noble Baroness, Lady Finlay, although I have a more fundamental objection to her amendment. The public nature of the process serves a very valuable function in encouraging the maintenance of the highest standards in inquests. It serves the valuable function of avoiding allegations of cover-ups and, perhaps more prosaically, it avoids the promulgation of rumours about what may or may not be the facts of a particular case. It seems to me that it would be very undesirable to confer a power to exclude the press from an inquest because the event, understandably, is very upsetting, particularly to an adult sibling of the deceased. I suggest that the correct remedy for this very real problem is to apply the code of practice for the press and, if necessary, to enhance that code of practice.
I shall not add to the troubles that the noble Baroness, Lady Finlay, has experienced in trying to convince the Committee of this amendment. She will already have appreciated that she still has quite a case to argue, given the reservations that have been identified by noble Lords, on which I shall not comment at this stage. I hope that, although I cannot accept the amendment, my response will be constructive. I understand the points and reservations that have been made as noble Lords have contributed to the debate.
No one in the Chamber does not sympathise with the noble Baroness’s objectives. We are all concerned about circumstances in which a family suffers again, often in a very savage way, through excessive and insensitive reporting. We would all like to see a remedy to that and, bearing in mind the points made by the noble Lord, Lord Pannick, to find a way of ensuring that it does not bring distress. Press freedom and discussion in a democracy are important principles, and restrictions on the press must be considered with the greatest care. As successive Governments over many years who have sought to operate restrictions have found to their cost, things do not work out in quite the way that they hope. Therefore, I shall begin by recapping policy developments over the past few years in order to put this issue into some context and, I hope, to reassure the noble Baroness that we are thinking constructively about this very real problem.
The draft Coroners Bill 2006 contained a clause on reporting restrictions. That clause would have allowed the media to report cases but the coroner would have had discretion to make an order preventing the names of individuals being published. However, as a direct result of our consultation on the draft Bill, my ministerial colleague, Bridget Prentice, announced in October 2007 that we would take the clause out of the Bill. This was because a broad consensus had emerged that the proposals could limit public scrutiny and the transparency of coroners’ courts—the very point that the noble Lord, Lord Pannick, made—lead to inconsistent reporting of inquests across the country because of the differential impact, and unreasonably raise the expectations of families where the likelihood of any restrictions being imposed was pretty limited. Instead, we agreed to look at how else we could ensure the sensitive reporting of all deaths, not just those of children or those where children would be affected. Nevertheless, the noble Baroness’s concern has a particular sharpness to it.
On 14 January this year, we announced that, following further consultation, the Government had decided that the best way forward was to work with the Press Complaints Commission, bereavement support organisations, the Coroners’ Society and others to bring the Press Complaints Commission’s code of practice to the attention of both bereaved families and the press. The code includes very important provisions to avoid,
“intrusion into grief or shock”,
and about children generally. It is important that families are aware of the code so that they know what they can do if they feel that they are being harassed by the press or that the case has been misrepresented.
To this end, in recent months our officials have been working closely with the commission to ensure that the organisations that do important work supporting bereaved people are fully aware of the code. I understand that the commission also works directly with the press—both with new journalists and then via refresher training for more experienced ones—so that reporting is as sensitive as possible. In March this year, the commission also published its updated Editors’ Codebook, which goes into great detail about what sensitive reporting involves.
Against this backdrop, I should add that I doubt whether the amendment would have the effect that the noble Baroness hopes for. It might bar the press from an inquest but they would still be able to obtain and publish information about the inquest, and earlier stages of the coroner’s investigation, because they get that from other sources which would not come under the prohibition. Therefore, the danger would be that such information from secondary sources would be unreliable and would lead to more distress for a bereaved family than if the press were present at the inquest when the issues were discussed clearly. This strengthens our view that the work with the Press Complaints Commission is a more effective and proportionate way forward and more likely to protect bereaved people, whether bereaved by the death of a child or someone of any other age.
I want to give the House the assurance that we take the burden of the noble Baroness’s concern very seriously. She mentioned the particular issues with regard to Bridgend, which had a terrible dimension, but there are other instances. I had the occasion to serve on a Select Committee which looked at press intrusion. The press can improve over time, but we saw one or two cases where it was indefensible that anybody would act in such a way, completely reckless of the horror they were visiting on people who had already been assaulted by appalling news and events. So I am fully at one with the noble Baroness in her objectives and I hope she will see that the Government are trying to be constructive about this. However, if she thinks I have not expressed some concern about the amendment, I hope she will have listened to other voices in Committee which indicate that the amendment should possibly be withdrawn.
I am most grateful to the Minister and to all noble Lords who have spoken, and I want to reassure the House that I had intended this to apply only in exceptional circumstances. I am grateful for the reassuring suggestion from my noble and learned friend Lady Butler-Sloss that Clause 36(2)(e) could potentially cover the issue anyway. I say to the noble Lord, Lord Neill of Bladen, that one of the other sorts of situations is where a genetic abnormality or an infection has been acquired, which the other children do not know about. Once that is listed in the press, the siblings will hear about it at school, which is not the best way.
I also recognise the point made by the noble Lord, Lord Pannick, that the safeguard for high standards is openness, and that we are potentially balancing harms here as to what is the least dangerous situation. I want to have on the record that, having read the Editors’ Codebook, I think things have improved and it is a credit to the Government that they have taken into consideration the needs of the bereaved. I can see that this amendment is clumsy, may not achieve its purpose and is in the wrong place. Therefore, I beg leave to withdraw the amendment.
Amendment 24 withdrawn.
25: After Clause 9, insert the following new Clause—
“Publicly funded legal representation
The Secretary of State shall by regulation provide for non means-tested funds to ensure that the family of the deceased has legal representation at relevant inquests.”
Amendment 25 is proposed by INQUEST and places an absolute duty on the Secretary of State to provide legal aid for families. Amendment 101 is proposed by the Joint Committee on Human Rights and calls for the Secretary of State to publish a report on access to legal aid for bereaved families.
Ms Harriet Harman, speaking in another place last year, said:
“If bereaved relatives with no legal representation turn up on the steps of a coroner’s court and find that the Ministry of Defence and the Army have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair”.—[Official Report, Commons, 13/3/08; col. 421.]
One instance of that was the inquest in 2008 into the death of Mark Camm, who died following police contact. There were some 13 legal representatives at the inquest looking after the interests of the chief constable—specific police officers and detention officers, force medical examiners, the NHS trust, and individual accident and emergency doctors—with the family left to fend for themselves. A letter was written to the Secretary of State for Justice by no less than 30 organisations on 5 June, which made the point that:
“Although funding for representation is available in some cases, to receive it families have to make lengthy, complicated, intrusive and time-consuming applications to the Legal Services Commission. Even when this process is completed, many families who require and deserve funding do not receive it. With the state always legally represented, this creates an unjust imbalance between the parties involved in the inquest”.
I would like your Lordships for a moment to contemplate what happens at an inquest where the state is involved. Undoubtedly all sorts of interests will be represented by lawyers. The evidence may consist of difficult evidence from the post-mortem, presented by the pathologist; it may frequently involve an investigation into what goes on in police stations; there may be comments where the Army or the forces are involved on particular systems and the procedures; evidence may be called in factory cases in relation to what has gone wrong within a particular factory involving the use of complicated machinery; and so on. An unrepresented family cannot conceivably cope with an adequate testing of the evidence that is brought before them.
Of the applications that have been made under the discretionary process, in 2007-08 only 12 of 69 applications for extraordinary funding that were made to the Legal Services Commission were granted, and in the previous year, the figure was only 16 of 104 applicants. So it is quite clear that there is a considerable deficit in what is available. INQUEST has provided details of certain cases. For example, exceptional funding was denied for the family of a man who died in hospital a few days after a struggle with a police officer on the grounds that the death fell outside the definition of being in custody and raised no matter of wider public interest. In another case, earnings details were sought of the family of a man who was found dead in prison—subsistence farmers living in Ghana. The inquest into the death of a woman in prison was adjourned in November 2006 to permit the representation of the family, and her retired parents were asked for £8,500 by the legal services in February 2007. The retired parents of a man who died in prison were required to use the money set aside from their retirement to contribute a representation. The daughter of a woman who died in police custody was required to contribute from the inheritance she received from her mother who was the subject of the inquest. She had to contribute £4,000, notwithstanding the fact that she was a single mother of a three year-old.
I am grateful to the Association of Personal Injury Lawyers which has provided me a great deal of information. The purpose of this amendment at this stage is to suggest that the Government look at the sort of circumstances—and put them in the Bill, or at least in regulations—in which legal aid funding could be granted. In my Second Reading speech, I made the point that wherever the state is represented, there ought to be at least a presumption, if not a requirement, that the family of the deceased should be properly represented at public expense. Every party represented at an inquest, other than the deceased’s family, may very well be seeking to avoid blame and to make sure that they are not sued. It is only right that the family should be properly represented.
The coroner’s decision should therefore take into account factors such as these: the level of the representation of other participating parties; the likelihood of the bereaved family being disadvantaged due to complexity or understanding; the likelihood of experts and witnesses appearing at the inquest; and the assistance that such representation is likely to give to the coroner in establishing the circumstances of the death or in making recommendations in relation to future deaths. All these matters are of importance.
Legal professionals who are engaged by a family can give proper advice on the civil legal system and whether a civil claim is worth pursuing, and no doubt if they can the legal representatives can cross-examine witnesses and experts. They may very well found a claim that will not require litigation because, as I said yesterday in another context, insurance companies will very often meet a claim as a result of what is said at the inquest.
The budget for civil legal aid has decreased from £922 million in 2003-04 to £795 million in 2007-08—a £127 million decrease in civil legal aid. Those data were given in response to a Written Question in the House of Commons in November 2008. The funds must be available for proper legal representation in this case. I see the Minister laughing. I do not think that his laughter will be well received by bereaved families: people whose sons have been killed in Iraq or Afghanistan, or people whose sons or daughters have been subjected to death in prison for one reason or another. I do not think it is a matter for laughter. This is a very serious issue, which must be addressed. It is important that bereaved families receive legal representation to explore the reasons for the death of their loved ones and are advised of the consequences thereafter. I beg to move.
I added my name to Amendment 25, which the noble Lord, Lord Thomas of Gresford, moved this evening, and if I had had any doubts about it, they would have been assuaged by his magnificent introduction to it. I hope that the Committee will be convinced of the merits of his arguments about this fundamental issue of justice and inequality. I dare say that the Minister will not be able to accept the amendment tonight, but I hope that, between now and Report, he will look again at the financial implications—one of the issues to which the noble Lord, Lord Thomas, just alluded—and the principles that underline the arguments behind the amendment.
Public funding, as we have heard, is currently not available to bereaved families except in exceptional circumstances. That is in stark contrast to public bodies with a direct interest in the inquiry, as we have heard, and which are often represented by one or more legal teams that are often funded by the taxpayer. To put it simply, this cannot be a just state of affairs.
Let me first deal with the denial of legal aid for bereaved families. This omission can leave such families without independent representation and, as such, goes to the very heart of the integrity of the coroner’s inquest as a whole and the protection of Article 2 rights. These rights were enumerated in the European Court of Human Rights case of Jordan v the United Kingdom—a case to which I referred during our proceedings yesterday. It was held in that case that where Article 2 rights were engaged, the subsequent investigation must be independent, effective, prompt and open to public scrutiny and must enable the next of kin to participate. I cannot see how, in the absence of a proper and accessible legal aid system, those requirements can possibly be fulfilled.
While it is true that the funding for representation is permitted in exceptional circumstances, there are substantial obstacles to demonstrating such circumstances, as the term “exceptional” suggests. I do not dismiss the obvious public spending constraints on the Government, especially in the current financial climate, but I would be interested to hear the Minister’s estimate of the costs involved when he comes to reply. I was struck by the figure which the noble Lord, Lord Thomas of Gresford, gave us of a decrease in the legal aid budget; I think he said that it was £127 million. That suggests that there might be the opportunity for some viament in the way in which we use these public funds.
Will the Minister at least accept that in the specific context of the coroners’ system, we could be dealing with extreme stress and upset on the part of the family, and that in those circumstances the likelihood of a family wishing to undertake a burdensome application to meet such “exceptional” criteria is manifestly slim? Everything often seems to be stacked against them. The scales of justice do not seem to be balanced. That point was noted in a report in the Times on 21 May this year, which quoted Peter Lodder QC, chairman of the Criminal Bar Association, as saying:
“It is the least society can offer”—
“at a time when they are invariably experiencing the most severe distress”.
He is not alone in calling for reform. John McQuater, president of the Association of Personal Injury Lawyers, to which the noble Lord, Lord Thomas of Gresford, referred, has expressed “extreme disappointment” that so far Ministers are not backing extending legal aid. He said:
“All too often people go to inquests, already distressed and completely unfamiliar with the system, only to find themselves outflanked and overwhelmed by the lawyers of those who may be responsible for the death of their loved ones”.
An inquest is often the only opportunity for a bereaved family to find out the circumstances of a loved one’s death, and without legal representation they are left to struggle to understand the proceedings and the language of the court. In cases involving state authorities, the problem is compounded by the presence of barristers representing officials and agencies but little opportunity for the family’s voice to be heard. Currently, a family relies on a coroner’s support for their application for funding, while the authorities are assured of adequate legal representation every time. This encourages perceptions of the imbalance which I have just described and inequality, which have an impact on public confidence in cases with state involvement.
For those reasons, I support the amendment which the noble Lord, Lord Thomas of Gresford, has laid before the Committee this evening. This is an instance where the justice system needs to be rebalanced, and I wish his amendment well.
I strongly sympathise with the arguments which the noble Lords, Lord Thomas and Lord Alton, have advanced so powerfully. My difficulty with Amendment 25 is that, as I understand it, it would require public funding on a non-means-tested basis. I, for my part, ask the Minister to give an assurance that the Government at least accept that where an inquest raises difficult questions of fact or law involving the possibility of state responsibility, and where the family cannot afford legal representation, public funding should be made available.
I, too, support the intentions behind the amendment. My concern relates to military inquests, in which legal aid has by and large been granted wherever applications for it have been made—I believe through the MoD and not the Ministry of Justice, although I am not quite sure about that. For families who have lost someone in the service of their country, usually on the other side of the world, as we now see in Afghanistan, to walk into an inquest that has quite often been delayed and to be faced with a phalanx of legal people, a number of them in uniform, can be quite off-putting.
Although this has worked well thus far, I am concerned. I am not touching on the amount by which legal aid payment has been reduced. I know my noble friend well enough from his time as a Ministry of Defence Minister, and the compassion he showed then for the Armed Forces, to know that the smile on his face at the reduction of legal aid spend had nothing at all to do with that. It was probably surprise that any government department could achieve a reduction in any kind of budget.
I would welcome the Minister giving an indication about military inquests. I accept that it is difficult to separate them out, but Amendment 25 talks about “relevant inquests”, and those that I am talking about are military inquests. Whereas families have been able to be supported through their applications thus far, I would not wish to see this new Bill change that. Therefore, if there is no reference in the Bill to it, I certainly hope that we can be given an assurance that that will continue.
I very much support the speech of the noble Lord, Lord Pannick. It seems that there are certainly cases where there should be legal aid, and I support his proposals. It would be very helpful if the Minister could tell Members of the House something about the circumstances in which legal aid is actually given in inquests. I, for one, am ignorant about what the arrangements are.
Having expressed a rather strong view about the lack of appropriate legal aid in family cases, I am painfully aware of the continuing huge bill for legal aid. I suspect that the Minister has that well in mind, even if there has been a welcome reduction from the point of view of the Government and, perhaps, of us as the taxpayers. However, it was at an expense. There are various areas where access to justice is limited. One is when those who are bereaved are facing the phalanx of lawyers of those who may be found responsible for the death of the loved one. That unhappy situation certainly shows a degree of injustice, which I am sure that the Government would not wish to continue.
I shall speak to Amendments 191B to 191D, which are grouped here in my name and that of the noble Baroness, Lady Dean of Thornton-le-Fylde. These additions amend Schedule 2 to the Access to Justice Act 1999 to include inquests into the deaths of members of Her Majesty’s forces. The assistance given would include the provision of legal aid and advocacy. Those benefiting from these amendments would only include family members or next of kin of deceased service personnel. I acknowledge the assistance of the Royal British Legion in formulating these changes.
As I mentioned at Second Reading—and the noble Lord, Lord Thomas of Gresford, has given more detail tonight on this—too often, the MoD is represented by counsel, while families have no automatic recourse to legal aid. Government counsel, the costs of whom now run into millions of pounds, are said to be present to assist the coroner. An inquest is not an adversarial court, so it is asserted that there is no need for the deceased’s next of kin to be legally represented. Pressures on the legal aid budget are also prayed in aid of refusal, which is offensive to the bereaved and does not chime in any way with the undertaking to deal fairly with the families of service personnel. That was a specific cross-government undertaking in Command Paper 7424, The Nation’s Commitment, to which I have already referred.
It is, therefore, as much a duty for the Ministry of Justice and the devolved Administrations as for the Ministry of Defence not to cavil over the cost of making such provision. Moreover, we have recently had the Appeal Court ruling that Article 2, the right to life, can be applied in the field. Unless the ruling is overturned on appeal to the Law Lords or the Supreme Court—and I presume that it will be appealed—that will inevitably mean that the deceased’s next of kin may need legal assistance if human rights legislation may be involved. Alternatively, now that military inquest coroners have built up their expertise, perhaps the MoD should no longer have to field counsel at those hearings to assist the coroner, otherwise it might be for the coroner who will preside at the inquest to authorise legal aid for the deceased’s representatives, if requested, whenever the MoD is represented by counsel.
The Royal British Legion and the War Widows Association held an event for bereaved Armed Forces families last year. I shall quote some extracts from the conclusion of a detailed letter that clearly outlines experiences of the bereaved:
“This feedback is lengthy but demonstrates that the process for inquest is seriously flawed, biased and unsupportive. The very department that heads up inquests receives all information and determines what families are told. Had we known half of the … information before we went to inquest the agenda and the proceedings would have been entirely different and we could have provided more assistance to the coroner. All bereaved families should be entitled, no matter what their means, to legal assistance under the legal aid system. This process leaves us still today, over two years since”, the loss of, our son, bereft of any sense of being treated with respect and receiving any natural justice. The MoD is a powerful machine, and if our ‘small voice’ can be used to make easier the experience of other families that inevitably will follow, in our footsteps, and if a more transparent and open process can be achieved, then writing this today has been worth the heartache and pain in reliving not only the traumatic pictures of that very fateful day but the experience of what we have had to endure over the last couple of years.
Those are very telling words, but they most strongly justify the purpose of my amendments. More must be done to help those who have most suffered the most traumatic loss of a healthy young man or woman just starting their adult life.
We must not leave the next of kin feeling so bereft of help at such a dreadful time.
In the foreword to Command Paper 7424, the Prime Minister said:
“I am determined to ensure that they”—
that is, the Armed Forces and families—“are fairly treated”. I urge the Minister to accept this amendment.
I very much appreciate the sentiment behind Amendment 101, which was so ably spoken to by the noble Lord, Lord Thomas of Gresford. As the Minister with responsibility for legal aid in the Ministry of Justice, I am certainly aware of the need constantly to keep legal aid and its application to inquests under ongoing review. However, I have to say straightaway that I believe that that matter can be best dealt with outside legislation and is not appropriate to be in the Bill.
I am much less sympathetic to Amendment 25, which would require the Secretary of State to provide non-means-tested legal aid to all bereaved families at inquests. I ask noble Lords to forgive me for being realistic. I apologise if the noble Lord thought I was laughing at a serious moment. I certainly was not. But I am afraid that I was amused by the argument that £127 million went from the civil legal aid budget in one year and that therefore there was a gap. Probably that money went straight to criminal legal aid, which is the part of the legal aid fund that seems to be able to grab anything it really wants because of the ECHR requirements. Of course, that is a field of the law in which the noble Lord practises so successfully. The idea that there is a gap of £120 million in the legal aid fund that can be just moved from one quarter to another is completely unrealistic.
I know that many noble Lords here today are interested in the legal aid situation. Our legal aid spend remains about £2 billion a year, which is extremely high by international standards. It has gone up from £1.5 billion in 1997-98 to marginally more than £2 billion now. Much of that increase has been on criminal legal aid, with some on family legal aid. We split our legal aid spend into about £1.1 billion for criminal legal aid and the balance of £900 million for civil and family legal aid. As a consequence, we help more than 2 million people each year to deal with their problems. But this budget will not go up. It will not go up under this Government in the next few years and I very much doubt that it will go up under any other Government who may take our place. I am sorry to lay it so frankly on the table. These are issues that I have to deal with in deciding where we spend this large, but restricted, amount of money; I am privileged to be allowed to do so.
We need to be realistic. Providing legal aid to bereaved families at all inquests, which is what Amendment 25 asks for, we estimate—it is just an estimate and could be out—would cost in the order of £240 million per year. That is more than 12 per cent of the total legal aid budget. No Government could make that kind of offer, much as they would like to. Therefore, I have to make it clear that that amendment is not acceptable. The noble and learned Baroness, Lady Butler-Sloss, asked me to explain where legal aid in the coroner field is available and I shall do my best to do so. Some of the background to the legal aid system relating to coroners is as follows. We have said it before: coroners preside over inquests and are responsible for ensuring that all interested parties are properly heard. They have a duty to protect and look after the interests of those who are not legally represented. No witness or interested person to the inquest is expected to present complex legal arguments. Most inquests do not need representation of any kind because by their nature they are inquisitorial and not adversarial.
That is one reason why we have put an appeals system in this Bill. If interested persons feel that they have not been properly served by the investigation and inquest process, they may appeal to the Chief Coroner any of the decisions set out in Clause 32. As the appeals process is intended to be accessible and straightforward, and largely based on written representations, we are also of the view that interested persons will not require legal aid routinely to benefit from it. But of course there are certain cases where bereaved people require representation and get it. Funding is means-tested to protect the limited resources of the legal aid budget and is available only in exceptional circumstances, of which there are two. That is where there is a significant wider public interest in the applicant being represented or where representation is necessary to enable the coroner to conduct an effective investigation under Article 2 of the ECHR.
For example, funding for deaths in state custody has been authorised, subject to the funding criteria being met. We want to retain and protect this funding. The way that the system works is that the Legal Services Commission, which is responsible for the maintenance of the legal aid fund in England and Wales, receives requests for funding. If it agrees that that is a suitable application, it comes up to the Ministry of Justice and the decision lies on my desk as to whether legal aid funding should be given for that inquest. I will state the obvious: were all things equal and I had a bottomless pit of money to allocate to the coroners system in England and Wales, I would like to extend legal aid in many cases, particularly to those bereaved families who feel that they are not able to speak up for themselves. But I remind the Committee that legal aid representation for inquests was not available at all until 2000, when legislation introduced by the Government made it available in the circumstances I have tried to explain this evening.
Reforms in the Bill, with the co-operation of coroner’s officers, guidance in the charter for the bereaved, input from third-sector organisations and pro bono groups—they always play an important role—will continue to ensure that those people most in need of support and representation receive it. I repeat, as I finish dealing with the first amendments, that keeping legal aid arrangements under continuing review in the light of the proposed changes to the system, would seem the most pragmatic and sensible way forward.
In the light of the points that the Minister made and of the way that noble Lords have spoken to the amendments, would another way of proceeding that might meet some elements be if on Report he were to table an amendment that would severely restrict the extent to which organs of the state could bring legal representatives to inquests?
May I take away the right reverend Prelate’s suggestion? I have no figures to prove it, but I believe that the instruments of the state, as he calls them—the Ministry of Defence has been particularly mentioned in that context; I will talk about military inquests in a moment—appear much less in inquests now than a few months or years ago, but I need to check up on that. I am grateful for his suggestion.
I turn to the amendments from my noble friend Lady Dean of Thornton-le-Fylde and the noble and gallant Lord, Lord Craig of Radley. Their intention is to exclude representation at military inquests from the usual community legal service means-testing regime. I have explained that the current arrangements where representation can be granted in an inquest in exceptional circumstances, subject to the normal means test, is the best way to assess the need for representation. I add that in all 16 cases where the Legal Services Commission has made a recommendation for exceptional funding in the military field, both I and my predecessors with responsibility for legal aid have agreed that it should be provided. Where funding for a military inquest is recommended to me by the Legal Services Commission, I have the power to waive the financial eligibility limits too and I give careful consideration in doing so in every military inquest recommendation that I receive.
I have looked into the figure of 12 out of 69 applications for exceptional funding at inquests generally—not just military inquests—and it is not correct. It relates to out-of-scope inquests during the 2007-08 period only. Deaths in prison custody are recorded by the Legal Services Commission as in-scope inquests. In 2007-08 the Legal Services Commission granted funding for 80 out of 101 exceptional in-scope inquests, a figure which includes but is not limited to deaths in prison custody. What is in scope? That is a complex question that relates to those types of inquest that are subject to a separate authorisation. The type of inquests that are in scope are those concerning a death in police or prison custody during the course of police arrest, search, pursuit or shooting, or during the compulsory detention of the deceased under the Mental Health Act 1983. Of course, military inquests are also included.
I hope that those who spoke to the military amendments, if I may call them that, are satisfied by what I have said. We grant legal aid in every request for exceptional circumstances in the military field at present.
I thank the Minister for what he has said, but I am not yet satisfied. The issue is not whether in exceptional circumstances legal aid could be applied for and might be granted and whether means-testing would be involved. I was after an assurance that it would always be available without going through all the extra problems. The reason I have asked for this is based on Command Paper 7424, in which the Government specifically undertake to treat fairly the Armed Forces, their families, and veterans. This was a very specific, major paper, produced by the Government. It applies across government, not just the Ministry of Defence. This Bill and, indeed, this amendment, offer an opportunity for the Government to make it clear that they are continuing to support the thrust of what they said and what the Prime Minister said about being determined that the Armed Forces should be treated fairly.
I ask the Minister to think again very carefully about the amendments in my name and that of the noble Baroness, Lady Dean of Thornton-le-Fylde.
We do take the Command Paper very seriously, but it does not say that automatic legal aid should be provided in every single case where people have died in the service of their country. Where that is requested—and it does not happen in every case—and a solicitor is involved, any application that comes from the Legal Services Commission is successful and legal aid is given for the representation of those bereaved families. The Ministry of Justice has granted it in 16 out of 16 cases. Three cases were not passed to the Ministry of Justice. Two claims were made which did not meet the guidelines that stipulate what is a valid request, while the third—funding for a digital review—is being provided.
When the requests for exceptional funding are made in these cases, we give it as a matter of course. Of course we have to see whether it is appropriate but in cases where people have been killed abroad or for their country, our habit is to accept the recommendation.
The noble Lord, Lord Davies, told us earlier today that some 500 inquests are heard with a jury in this country. The Minister has suggested that the cost of providing bereaved families with legal aid would be somewhere in the region of £250 million, which means that something like £500,000 per inquest would be paid to defence representatives. These are ludicrous figures. I challenge the Minister to tell us how much the taxpayer has paid over the past two years, or 12 months, or whatever period he chooses, for funding representation for the Ministry of Defence at inquests. Let us see what the comparison is. How much has gone to the Ministry of Defence to appear at inquests, and how much has gone to families? How many of those families have been means-tested?
Those figures should be readily available, which is why I confine it to the military, but could he also find how much it cost the taxpayer to represent the Prison Service or the police service at inquests, and compare that with the amount of legal aid that has been spent on bereaved families? Let us get the facts before the Minister tells us that it is quite impossible to exceed the legal aid budget, which comes from the Ministry of Justice. We must bear that in mind all the time. Whenever the state is involved, or wherever there is a possibility of blame at an inquest, then the state will be represented, and who is paying? We are paying. It may not come out of the noble Lord’s budget or the Ministry of Justice’s budget; it may come out of different budgets—those of the Home Office or the Ministry of Defence—but we are paying those expenses.
I shall try to give some figures. The figures I have for costs for other government departments are a few years old. In 2004-05, Her Majesty’s Prison Service, as it then was, spent £901,000 on legal costs, including those of Treasury Solicitors, counsels’ fees and other related costs, and in the same year the Ministry of Defence spent £76,265 on inquests, although I concede readily that that figure has increased considerably in recent years given the significant improvements to the efficiency with which delays have been tackled. My figure of £240 million per year is for all inquests. If there was automatic legal representation for all inquests, the annual legal aid bill for inquests would be that sum.
I think that the Minister will agree that the thrust of my amendment has been directed towards inquests that involve the state. It may be wider than that, but to pluck a figure of £240 million as the cost of representation, and then to compare it to £76,000 for the Ministry of Defence and something under £1 million for another department of state indicates what a ridiculous suggestion it was that the cost to the state would be £250 million for these inquests. I do not think that I need say any more than that, but I am grateful to all noble Lords who have taken part in the debate. The Bar Council is very concerned to cover family law—I refer to the contribution of the noble and learned Baroness, Lady Butler-Sloss—as well as criminal law. Its briefing says, in relation to this matter:
“The Bar Council understands that the legal aid pot is finite, and that difficult decisions have to be made vis-a-vis funding. As a matter of principle, all interested parties should be represented where the State has obtained representation funded via the taxpayer. The Bar believes that to deny representation to other parties where it is provided by the State, or indeed inquests that do not involve the State but where one party has access to representation, is a violation of the equality of arms principle that underpins our system of justice”.
The noble Lord, Lord Pannick, seemed very concerned that the amendments suggest that this provision should be non-means-tested. Your Lordships will recall that at the inquests into six deaths at Her Majesty's Prison Styal, such was the uproar at the cost of the representation to the state that the Corston review on women in the criminal justice system was set up. The noble Baroness, Lady Corston, said in recommendation 6 of her report:
“Public funding must be provided for bereaved families for proper legal representation at timely inquests relating to deaths in state custody that engage the state’s obligations under Article 2 of the European Convention on Human Rights. Funding should not be means tested and any financial eligibility test should be removed whenever Article 2 is engaged. Funding should also cover reasonable travel, accommodation and subsistence costs of families’ attendance at inquests”.
The noble Baroness’s report, set up in the furore over the deaths at Styal prison, recommended non-means-testing. The noble Lord told us that it appears to be within his purview to determine in military cases whether there should be means-testing or not. I would be grateful if he would write to me and tell me in how many of the cases where legal representation has been granted there has been means-testing, and what proportion that is, so that we can be better informed when we come to the next stage. Although I now seek your Lordships’ leave to withdraw the amendment, I shall return to it at Report and shall no doubt confine it—in the light of the observations that I have heard from all round the Committee—specifically to where the state is represented with taxpayers’ support. I beg leave to withdraw the amendment.
Amendment 25 withdrawn.
Clause 10 : Determinations and findings to be made
Amendments 26 to 29 not moved.
Clause 10 agreed.
Clauses 11 and 12 disagreed.
30: After Clause 12, insert the following new Clause—
“Information for inquests
In section 15 of the Regulation of Investigatory Powers Act 2000 (c. 23) (general safeguards), after subsection (4)(c) insert—
“(ca) it is necessary to ensure that an inquest has the information it needs to enable the matters required to be ascertained by the investigation to be ascertained;”.”
Of course, we are delighted that the Government have decided that Clauses 11 and 12 should not stand part of the Bill. However, Amendments 30, 31 and 221 take us back to a particularly thorny problem. Last night we debated the Government’s intention in this Bill to circumvent the inquest process by moving some inquests to a parallel inquiry system under the Inquiries Act. The reason why the Government want to do this is to fulfil the need to have a process to examine deaths at the hands of the state that cannot currently be, in the Government’s opinion, dealt with by an inquest because of the information and methods of gathering such information, which fall under the Regulation of Investigatory Powers Act.
These amendments offer an alternative approach, which respects the independence of the inquest process from the Government. We do not believe that we can have a situation in which the state, for whatever reason, however justifiable, shoots people, appoints someone under the Inquiries Act to investigate and sets the remit for the inquiry, when there is no jury and little or no openness. In other countries, we would criticise that as impunity. Indeed, I understand that the UK is the only country in the world to maintain a ban on RIPA evidence. So my amendments would allow RIPA material to be part of an inquest and would create special provisions to be brought on to the statute book to protect the national interest in matters of true national security.
When we debated this first in relation to the Counter-Terrorism Bill in 2008, I moved some amendments that did not adequately cover matters of national security. Before the Bill came back from the House of Commons, we tabled further amendments that did address those issues. I was very grateful at that time for the support from the Conservative Front Bench. The noble Baroness, Lady Neville-Jones, said:
“There is widespread support for this measure across your Lordships’ House and in another place. It will address an anomaly in RIPA and ensure that all inquests comply with Article 2 of the ECHR. The point is not simply that inquests should be institutionally independent, but that they should be prompt. Part of the problem here is that we are delaying justice in several cases, which is not good for the reputation of British justice”. —[Official Report, 24/11/08; col. 1298.]
We addressed the shortcomings at that time in those amendments and I will go through my amendments now in detail to explain their purpose in this Bill. The first amendment is to Section 15 of the Regulation of Investigatory Powers Act 2000 to require that a copy of any of the intercept material or data is not destroyed before an inquest, because it may be necessary in the investigation. Without this amendment, current law and practice mean that intercept material that may be relevant to an inquest is likely to be destroyed as soon as an investigation is complete.
The second amendment, which I think is the key to the big issue, would amend RIPA to remove the prohibition on intercept material being made available to a judge, counsel, jury members or other interested persons in an inquest, when the judge considers it necessary to do so in the circumstances of the case.
The third amendment would simply amend Schedule 20, which contains the transitional provisions, to ensure that the measures in the second amendment apply to current and future inquests. Given the Government’s very thorny problem over one delayed inquest, that is entirely necessary.
These amendments have been drafted by the organisations Inquest, Liberty and Justice. They, like us, are very pleased that the proposal for secret inquests has been dropped, but we still believe that a change in the law is required so that inquests that involve intercept material are not unnecessarily stalled. The Minister will by now be fully seized of the fact that we do not think that implementing the inquiries system is an adequate substitute.
What was originally Clause 13 amended Section 18 of RIPA to allow intercept material to be admissible in inquiries in certified investigations. That was a tacit acceptance by the Government that intercept material could and should be made admissible in coronial proceedings. In fact, there is a piecemeal removal of the general bar on the use of intercept material; as the Minister will be aware, such material is admissible in, for example, certain civil proceedings, such as those on control orders.
The fundamental flaw in the Government’s proposal was that there was no principled reason why the removal of the general bar on intercepts at inquests needed to be restricted to a new breed of certified inquests. With my amendments, it would be possible for a judge conducting an investigation to ban or restrict the jury’s or the public’s access to material that would be contrary to the interests of national security. Rule 17 of the Coroners Rules 1984 enables a coroner to direct that the public be excluded from an inquest or any part of an inquest if he considers that it would be in the interests of national security to do so. A judge sitting as a coroner can be appointed to head such an inquest, if it is particularly sensitive, and public interest immunity certificates can be issued if necessary. These powers are maintained in the Bill.
The recent inquest into the death of Jean Charles de Menezes is a case in point. It involved very sensitive material including details such as the Metropolitan Police’s operational response to the threat posed by suicide bombers—it is hard to think of anything more sensitive—the assistance that the police had from countries such as Israel and the USA in developing it and all sorts of other aspects of undercover and surveillance operations. Despite all that, the inquest went ahead. That was achieved in several ways. A High Court judge was appointed as coroner and was able to consider PII applications by the police in respect of highly confidential policies and documents. Where discussions in open court touched on the contents of any such protected documents, agreements were reached in the absence of the jury and the public about what could be explored. Although some aspects were regarded as too sensitive to be investigated publicly, overall a reasonably fair exploration of the issues was allowed, while national security was protected, as were other policing concerns. Suitable arrangements were made for the protection of witnesses without the need for certification. That inquest went ahead as an inquest, not as an inquiry.
With that recent example in front of the Government, they should be able to see that these amendments are a practical way forward without destroying the tradition of inquests and going for the parallel system of inquiries for such sensitive cases that it looks as though they are attempting to put on the statute book. I beg to move.
I support these carefully drafted amendments for all the reasons given by the noble Baroness, Lady Miller, in her powerful speech and for one additional reason. That reason is that new subsections (8B) and (8C) inserted by Amendment 31 contain powerful safeguards to protect intercept evidence from disclosure, save where that is necessary in order to ensure an effective investigation of the death. There is also the additional safeguard of the power for the redaction of material disclosing the method or the means by which the information was obtained. If the Minister considers that these safeguards are inadequate, can he explain why and what other safeguards he considers are needed in this context?
I am most grateful to the noble Baroness, Lady Miller of Chilthorne Domer, who moved this amendment so ably. I support it. I shall not go over the arguments again, and I am grateful to the noble Lord, Lord Pannick, for having added additional arguments in support. I fear that the Government may say that they want to wait for the outcome from the Chilcot review and that that might be viewed as a way, or used as a way, of avoiding this. I fear that they might say that these amendments somehow pre-empt the findings of the Chilcot review, although I am not sure that they do.
I should like also to probe further a statement that the Minister made in response to one of our amendments. There was an implication that even those secret inquests might go and that there may be a risk that some inquiries could be transferred to become secret inquiries. There is, therefore, an anxiety that hearings may be held behind closed doors in slightly changed circumstances. It would be very helpful if the Minister could provide some assurance that we are not, by deleting the clauses that have been deleted, in any way jeopardising the openness of the hearings.
I ask the Minister in particular to clarify when the completion of the Chilcot review is expected and whether it would be possible, if this is a concern of the Government, to put in some caveat that these amendments would be reviewed when the Chilcot review reports, so that they could be time-limited, but that those inquests that are currently on hold could proceed, even if it was decided eventually to reverse the decision that we might make with these amendments.
I support the amendments that have been so ably moved this evening by the noble Baroness, Lady Miller, and supported by my noble friends Lord Pannick and Lady Finlay. I would like to pursue a point that my noble friend has just made concerning the change from secret inquests to secret inquiries, as she put it. All of us, I think, supported the Government’s deletion of Clause 11; we were very pleased that the Government responded to the concerns that were made at earlier stages of the Bill concerning the whole question of secret inquests. However, is replacing those inquests with secret inquiries not a move that could be said to be less transparent? It will involve no jury and may involve greater secrecy than even the original proposal.
It is fair to say that it was only during the Minister’s remarks last night that we were able to get a clearer picture of what the Government had in mind. He said that in future, in those rare investigations into deaths where an Article 2-compliant inquest cannot take place, because the inquest must be held with a jury and there is sensitive material that is central to the investigation but cannot be publicly disclosed, the Government will consider establishing an inquiry under the Inquiries Act 2005. So the death will be investigated in that way rather than by way of a coroner’s inquest. The Minister also stated that such an inquiry would be established wherever the Secretary of State decided that it was necessary to do so. The Secretary of State will set the terms of reference and decide whom to appoint as the chair of the inquiry. The only safeguard proposed is the Government’s word that they would expect to appoint a High Court judge.
Will the Minister say, when he comes to reply, whether that is Article 2-compliant? Article 2 under the Human Rights Act 1998 requires that, where a death occurs in state custody, or where the death is alleged to have resulted from negligence on the part of state agents, the investigation must be independent, effective, prompt and open to public scrutiny and it must support the participation of the next of kin. It is clear that an inquiry will not be independent. The Government will set the terms of reference. An inquiry will not focus exclusively on the cause of death of an individual; by its nature, its focus must be on matters more generally of public concern. The Government could run into a real difficulty here. I hope that, before the Committee leaves this subject tonight, through the amendments that the noble Baroness, Lady Miller, has placed before us, we will have the chance to explore that question further.
It is puzzling, to say the least, to be having to discuss in this Bill amendments to RIPA to allow intercept as evidence in coroners’ courts as proposed in Amendments 30 and 31. It is puzzling because the committee of distinguished privy counsellors, chaired by Sir John Chilcot, comprising my noble and learned friend Lord Archer, Sir Alan Beith MP and the noble Lord, Lord Hurd, reported to the Government in January 2008, which I want to make clear to the noble Baroness, Lady Finlay. They did that after six months of detailed investigation, having taken written and oral evidence from an impressive array of those who know about interception. They reported that nine conditions would have to be met before intercept evidence could be used as evidence in courts.
My right honourable friend the Prime Minister made it clear in the House of Commons in February 2008 that the Government accepted the report in its entirety, including the report's conclusion that if the conditions were not met, intercept as evidence should not be introduced. The intercept as evidence implementation unit—quite a mouthful of a title—has been set up in the Home Office. It has not yet completed its detailed work. Anyone who knows anything about interception and all its complexity of operational and other problems is not surprised that such a task takes time. Anyone who thinks otherwise fails to appreciate the importance and enormity of the problems. Nobody I know has ever been against using intercept as evidence as a matter of principle; the practical problems and dangers of its implementation have always been the problem.
In this context, therefore, I find it baffling that anyone feels that they can—excuse me for saying this—cavalierly barge in and try to use intercepts in coroners’ courts in this way with apparently no regard to the painstaking expert work that has been and is going on to try to allow this to happen without endangering invaluable national assets. I find myself wholly in agreement with the final sentence of a letter that quite a few of us have received from the Mobile Broadband Group, which represents the UK businesses of 02, Orange, T Mobile, Virgin Mobile, Vodafone and 3. The mobile operators form a significant constituent part of the communications service providers—CSPs in the jargon—whose importance is frequently recognised in reports of interception commissioners. The last sentence of the letter states:
“If Intercept as Evidence is to be introduced into any Court (Criminal, Civil or Coroners), it should be done in a comprehensive way, meeting the nine conditions of the Privy Council Review in their totality, including a detailed implementation plan which incorporates safeguarding the critical interests of partners’ legitimate needs”.
I very much agree with everything in that sentence and I therefore think that these amendments should be rejected.
I, too, oppose the amendment. I must declare that for 10 years I was an adviser to the Government, including on issues such as these under discussion this evening. All acknowledge that there is a problem concerning the practical use of intercept evidence. This therefore involves a matter of judgment. For my part, in the limited number of cases involved, we should err on the side of the security of the state while providing safeguards. We should accept the government compromise proposals for a public inquiry, which would achieve Article 2 compliance and at the same time completely safeguard sensitive intercept evidence.
It would be not only otiose but rather self-indulgent of me to rehearse the arguments so skilfully advanced by the noble Baroness, Lady Miller, in support of this amendment.
Your Lordships will recall that yesterday evening I spoke to Amendment 46, which sought to promote the alternative solution, which was to take the Government’s preferred objective of using the Inquiries Act occasionally to deal with these difficult matters, but to cut down the Secretary of State’s powers under the Act in such a way as to provide a balance between the interests of all parties involved that was fair in all circumstances. The Minister did not give my amendment a very warm welcome.
As a matter of principle, the Opposition would much prefer a solution in the coronial context to one in the context of the Inquiries Act. I entirely agree with the reasons for the question of the noble Lord, Lord Pannick, to the Minister at the end of his remarks. I submit that if the Minister does not accept the amendment of the noble Baroness, Lady Miller, he ought to tell us why it does not provide sufficient safeguards in relation to intercept evidence. We know that, in the de Menezes inquest, the judge—to, I believe, everybody’s satisfaction—produced a balance that was appropriate in all circumstances. I know of no particular security interest that was thought to be compromised. At least I have not heard of any. Not to know is, perhaps, not quite the same as not to have heard. Nevertheless, it is widely accepted that the inquest was handled with discretion and immense competence. If what is in Amendment 30 does not satisfy the Minister’s concerns about the admission of such evidence, what additional ingredients should the amendment have to pass the Minister’s test?
I thank noble Lords who have spoken in this important debate. The amendments tabled by the noble Baroness, Lady Miller, put forward an alternative solution to holding an inquiry under the Inquiries Act in cases where there is intercept evidence relevant to the circumstances of a death. These amendments seek, instead, to provide for the use of intercept evidence in inquests. In doing so, they would allow for the potentially wide disclosure of intercept material, not only to a High Court judge sitting as a coroner, but—this is the nub of the problem—to jurors and such other interested parties as bereaved families. This creates the potential for public disclosure of intercept material and associated damage, potentially to national security. Such an approach, as my noble friend Lady Ramsay made clear, would undermine the very real need in some circumstances to protect such material, its sources and the capabilities and techniques by which it was obtained, from public disclosure.
While these amendments would, in principle, allow the finder of fact to have access to all the relevant material and thereby conduct an Article 2 ECHR-compliant inquest, they do so by sacrificing what we call the ring of secrecy. This is necessary to protect such sensitive techniques, capabilities and sources. Frankly, that is too high a price to pay in the rare circumstances where this might arise. Why too high a price? Because it could fundamentally undermine and publicly expose those vital capabilities that we all agree are essential to tackling terrorism and fighting serious crime.
I acknowledge, of course, that it is not necessarily the intention for all intercept material to be fully disclosed. However, in those few cases where this is an issue, it will be impossible to redact intercept material in such a way as to disguise the method or means by which it was obtained. In those cases where it is possible, gists or summaries of any relevant material will already have been provided to the jury and other interested parties at the outset of the investigation.
I am in danger of repeating myself when I say that disclosure of intercept capabilities would have a real and damaging impact on our ability to gather intelligence that is vital to national security and the fight against serious organised crime. The Chilcot review on intercept as evidence has recognised this, which is why the Government are taking forward a detailed, painstaking programme of work—again, as my noble friend described—to ensure that we can meet the tests set out in that review and allow intercept to be used safely in the criminal courts where people’s liberty is at risk, without putting national security itself at risk.
The protections offered in these amendments, which include the possibility of redactions to material relating to the method or means by which the information was obtained, are inadequate to protect the public interest. We recognise the importance of ensuring that bereaved relatives and other properly interested parties should be involved in the conduct of an inquest as far as possible. Indeed, our plans for a new appeals process, bespoke to the coronial system, have been widely welcomed, as have the services outlined in the charter for bereaved people and other measures we have taken to improve the standing of families.
However, we have to strike a balance between the interests of the families, in one or two quite exceptional cases, and the wider public interest where there is material of such sensitivity that is central to the inquest. These amendments do not achieve that balance, which is why we have come forward with the Inquiries Act suggestion that we debated yesterday. The holding of a public inquiry—again, not to be done unless we cannot use the coronial system—would permit the disclosure of intercept material to the chairman, who would be a senior judge, of an inquiry established to examine the circumstances of a person’s death in accordance with the existing provisions in Section 18 of RIPA. It would also permit disclosure to any inquiry panel members and to the counsel to the inquiry, but it would not permit further disclosure.
Thus we would achieve twin objectives. The first would be an Article 2-compliant investigation. In answer to the perfectly proper question of the noble Lord, Lord Alton, our understanding is that inquiries set up under the Inquiries Act 2005 are acknowledged as one way of meeting an investigative obligation under Article 2, in addition to inquests, criminal trials or even criminal proceedings. Inquiries are certainly Article 2-compliant. Secondly, that could be done while managing to safeguard sensitive intercept material and preserving what I have described as the ring of secrecy.
The briefing provided by INQUEST, Liberty and Justice—all of them very fine organisations—recognises the difficulties we face. The briefing states that, under the noble Baroness’s amendments,
“it will remain possible for a judge conducting an investigation to ban or restrict the jury’s or public’s access to material that would be contrary to the interests of national security”.
I welcome the recognition that we need to protect intercept material. This answers the question asked by the noble Lords, Lord Pannick and Lord Kingsland. The solution put forward is flawed because it does not resolve how to proceed where there is relevant material—relevant to the decider of the facts, which in a coroner’s hearing will almost certainly be the jury—that cannot be disclosed to an inquest because such disclosure would be contrary to the interests of national security.
I appreciate that, under the amendment, a coroner would be able to keep a lot of information of a sensitive nature away from the jury. However, if the information coincided with material that was relevant to the decisions that the jury had to make, he would face the dilemma of either giving them the relevant material and risking the loss of sensitive material, or not giving them the relevant material and not allowing them to judge properly, under Article 2 for example, what the facts of the case were.
If it is accepted that there will be circumstances where intercept evidence cannot be disclosed to a coroner’s jury, it follows that in such cases the jury cannot be the finder of facts, as it would be inappropriate for the jury to give a determination that is not based on all the relevant evidence. If that is so, the logical consequence is that the jury would have to be dispensed with in such cases.
In our view, the only viable alternative to the provisions in what were Clauses 11 and 12 is not a lifting of the bar on the admissibility of intercept evidence at inquests, but is, in those—I repeat, for the third time in my short speech—really rare cases, to establish an inquiry. That is our view, having considered the matter carefully. For those reasons, while I absolutely understand the good intentions behind the amendment that has been so ably moved, I must ask the Committee to reject the amendment and ask the noble Baroness to withdraw it.
Before the noble Baroness responds, would the Minister consider two propositions? The first, with which I am sure he would agree, is that judges are very good at making the kind of decisions to which he referred. I would say to the noble Lord: “Trust the judge”.
Secondly, as a fallback position—and I am not suggesting that this is one we would advance on Report—there may be room for both these solutions to the problem. There may be room for an amendment that advances the possibility that, in certain circumstances, intercept evidence could be used in a traditional coronial context, with appropriate safeguards. However, if it is considered that the security nature of that evidence is such that relevant matters should be withheld from the jury, the Government could go to the second stage and initiate an inquiry—as long as the amendments that we tabled to the inquiry system were accepted by the Government.
I am thinking on my feet here. If not, what will happen is that the moment there is an issue that involves intercept evidence, the Government will automatically go for an inquiry without thinking hard about whether the matter could be considered under a coronial solution, as it was ably by the de Menezes inquiry. I put these two thoughts to the Minister, in a spirit of trying to produce a creative result from the evening’s discussions.
I have spent my career trusting judges, and it has nearly always been the right thing to do. Of course, judges are extremely good, and obviously I take the point that a senior judge, in particular, would be experienced. As to the solution that the noble Lord proposes, perhaps I may think about it rather than responding to him tonight. This is a matter on which we want to hear expert opinion in this House, and outside too, so that we come to the right judgment. I think that the Committee knows where we stand at present but I am very grateful to the noble Lord.
I am extremely grateful to all noble Lords who have spoken. There have been a plethora of constructive suggestions that will move us forward towards Report. I am particularly grateful to the noble Lord, Lord Kingsland, who, with his normal forensic ability, got to the heart of the point when he said, absolutely correctly, that the opposition parties are looking for a solution in the coronial context and not one in the inquiries context. I am also grateful to the noble Lord, Lord Alton of Liverpool, for expanding on why we see an immense difference between the two.
I recognise that the noble Baroness, Lady Ramsay of Cartvale, is puzzled as to why I have brought this matter forward. Indeed, I think that she used the word “cavalier”, but I refute that. We discussed this at length during the passage of the Counter-Terrorism Bill. I had meeting after meeting with the noble Lord, Lord West of Spithead, and his final invitation was that we should debate this issue further during the Coroners and Justice Bill. That may have been because he thought that we would be nearer to having the Chilcot review solutions in place by now; however, they are not. I am responding to that invitation because I think that it would have been extraordinary if we had ignored the opportunity offered by this Bill to come back and approach a solution.
The suggestion put forward by the noble Baroness, Lady Finlay—that we could work towards a solution with a sunset clause in the Bill that would come into effect if the Chilcot review came up with anything better—was another constructive idea that we might well want to think about between now and Report. The noble Lord, Lord Pannick, was right: what we are really looking for here are powerful safeguards in relation to evidence that should not be disclosed, as I think the Minister has recognised. We have not debated vetted juries tonight, although that it is something that we could have talked about.
The noble Lord, Lord Pannick, is right: this issue will involve rare, very sensitive cases, but I remind him and the Committee of one very sensitive case that apparently could not proceed—that of Terry Nichols, which is now on the public record. Despite the long delay, because of the intercept evidence, that case was eventually heard by a coroner, who redacted everything necessary. She still felt that a meaningful inquest could be held. It was and it was concluded, despite a lot of feeling beforehand that it could not be held and that it would have to come under this special procedure. Therefore, we always have to question whether these are rare cases that truly cannot go before an inquest or whether it is a case of not having the right safeguards in place. I think that the majority opinion in the Committee this evening is that we need to work on the safeguards, and I remind the doubters that the UK is the only country in the world not to accept intercept evidence. There must be a way that other countries are getting a solution to this issue of inquests and intercept evidence.
However, I am grateful to the Minister for his positive attitude and the depth of expert opinion in the House that there is something to build on here. I look forward to discussing it and perhaps proceeding towards a solution on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment 30 withdrawn.
Amendment 31 not moved.
Clause 13 agreed.
Schedule 1 : Duty or power to suspend or resume investigations
32: Schedule 1, page 115, line 11, leave out “an exceptional” and insert “a good”
The starting point must surely be that it is entirely reasonable for the coroner to suspend his or her investigation—although matters relating to the post-mortem and the release of the body of the deceased person to families may still be dealt with during any suspension—if a person is charged with a homicide offence or a service equivalent, or with an offence connected to the death in some other way. If this were not the case, it is possible that the coroner’s investigation—which will be based largely on the same reports and statements—could, at best, duplicate a criminal inquiry and, at worst, hamper or prolong it.
We have made provision for the prosecuting authority to indicate to the coroner that it has no objection to the coroner continuing to investigate, and we have also enabled the coroner to continue if there are exceptional reasons for doing so. Coroners are sensitive to the need to give primacy to any criminal proceedings in relation to a death and would rarely continue with their investigation where a prosecution was in prospect or under way. So we maintain that the “exceptional” threshold for the coroner to continue an investigation in these circumstances is entirely appropriate, considering that the relevant offence is a homicide offence, a service equivalent, or an offence related to the death in some other way, and therefore, very serious proceedings are being examined. I hope that the noble Baroness will accept the consideration the Government have given to this issue and why we have expressed it in the terms that we have.
I am most grateful to the Minister for explaining that to me. One of the thoughts behind my amendment was to clarify the definition of the word “exceptional”. I should give advance notice that I have today tabled an amendment with my noble and learned friend Lady Butler-Sloss over issues around indemnity for the coroners. This amendment was to try to have a clear definition of “exceptional”, but there is a concern over indemnity. However, that is not something for us to discuss tonight; it will come later in our proceedings. In the mean time, I beg leave to withdraw the amendment.
Amendment 32 withdrawn.
Amendments 33 to 36 not moved.
Schedule 1 agreed.
Amendment 37 not moved.
Clause 14 : Investigation in Scotland
38: Clause 14, page 8, line 28, leave out from “(c. 52)” to end of line 33
I will also speak to Amendments 39 and 40. At Second Reading, I expressed my concern about the way in which Clause 14(6) drew on the definition of “active service” in Section 8 of the Armed Forces Act 2006—a section which deals solely with the offence of desertion. Surely it cannot be right—it is most inappropriate—to use that source of definition for those who have been killed on operational service.
The Minister kindly wrote to me following Second Reading. His letter is in the Library. He said:
“I fully recognise the disquiet that the cross-reference to Section 8 may cause”.
He went on to say that he would not table an amendment but that he was ready to look again at Clause 14 to see whether the definition of active service could be set out in full there rather than by cross-reference to Section 8 of the Armed Forces Act 2006. I thank him for that recognition but, as is clear from my amendment, I believe that we should not agree to a distinction being drawn between those on active service who were killed in action or died of wounds and other violent or unnatural deaths overseas of service personnel whose bodies will be repatriated and for which an inquest is required.
In Command Paper 7424, to which I have referred before, all government departments and devolved Administrations undertook to treat fairly all members of the Armed Forces, their families, and veterans. It would blatantly breach that promise to attempt to draw some dividing line between those who died in one theatre and those who died elsewhere. Indeed, the Minister’s letter says as much. He says:
“The families of service personnel who have died abroad other than on active service are no less deserving of consideration”.
The Committee should also note that only last week the MoD announced by Written Statement that it had amended its policy and that, in future, all fatalities suffered in operational theatres will be afforded a ceremonial repatriation; it is not just for those who have been killed in action or have died of wounds.
The Minister explained in his letter to me that Clauses 14 and 15 were devised to meet calls from service families in Scotland and from MPs and MSPs to make provision for inquires to be held in Scotland if that would be nearer and more convenient for the deceased’s next of kin. The Minister mentioned the inquiry headed by the noble and learned Lord, Lord Cullen, and said that it would be premature to pre-empt its conclusions, but do not Clauses 14 and 15 already do just that?
The Minister went on to say that Scottish Ministers would consider whether provisions should be extended to service personnel deaths in non-operational circumstances. Does that not suggest to the Committee that these clauses are at best transitional and at worst an unnecessary limitation on the fair treatment of service personnel and their grieving families? I strongly recommend that Her Majesty’s Government think again and accept the thrust of my amendments, which would remove altogether the unnecessary distinction between those who died on active service and other members of the Armed Forces who suffered an untimely end overseas, while leaving in place the necessary flexibility over where the inquest would be held. I beg to move.
I thank the noble and gallant Lord for his amendments and for the way in which he has spoken to them. We return to the issue of coroners’ investigations into the deaths of service personnel.
The amendments relate to Clause 14. This clause, in conjunction with the amendments to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 in Clause 41, makes provision for fatal accident inquiries to be held in Scotland into the deaths abroad of service personnel in certain circumstances. The intention is that requests to the Lord Advocate for a fatal accident inquiry will be made where the family of the deceased is based in Scotland. The Government aim to make what is a very difficult time for those bereaved families slightly easier, as it means that in most cases they will no longer need to travel long distances to England for an inquest.
Subsections (2) and (3) of Clause 14 set out when the section applies, enabling a request for a fatal accident inquiry to be made to the Lord Advocate. The section applies to service personnel who die on active service, or in training or preparation for it, and to civilians subject to service discipline who were accompanying them. The noble and gallant Lord’s amendments would remove the requirement for the personnel covered by the clause to have been on active service, or accompanying those on active service, when they die. This would mean that a request to the Lord Advocate for a fatal accident inquiry could be made in relation to the violent or unnatural death overseas of any service personnel.
I have carefully considered the noble and gallant Lord’s assertion at Second Reading that,
“all next of kin and families deserve the same fair treatment”.—[Official Report, 18/5/09; col. 1270.]
I wholeheartedly agree, of course, that the families of service personnel who have died abroad other than on active service are equally deserving of our consideration. However, I cannot accept the amendments that he has spoken to tonight, as to do so would pre-empt the outcome of the independent review of the fatal accident inquiry legislation that the noble and learned Lord, Lord Cullen of Whitekirk, is currently carrying out. His inquiry, announced on 7 March last year, is expected to report later this year. We consider that it would be premature to pre-empt his conclusions now by accepting these amendments.
Hardly surprisingly, the noble and gallant Lord then asks me: why, if that is so, can we go as far as we have in Clauses 14 and 15? The answer is that we look forward to seeing the report from the noble and learned Lord, Lord Cullen, to Scottish Ministers, but believe that the proposed amendments in this Bill can be made in advance of his work. We can go so far in advance of what he will say, but no further. The noble and gallant Lord will, perhaps, understand that there has been considerable discussion among various government departments—and, no doubt, the devolved Administrations—about how far we could go on this point while wanting to go further.
We have listened to service families in Scotland and responded with these amendments, which will allow the coroner system in England and Wales and the fatal accident inquiry system that prevails in Scotland to be more responsive to families’ circumstances. We anticipate the report of the noble and learned Lord, Lord Cullen, to Scottish Ministers. In the mean time, as part of their wider consideration of his recommendations, Scottish Ministers will consider whether the Bill’s provisions should be extended to cover the deaths of service personnel that occur in non-operational circumstances.
I repeat what I said in my letter about the drafting of Clause 14, and thank the noble and gallant Lord for his thanks for that. I hope that I may have reassured him that we are doing what we can to assist bereaved service families north of the border, at what is clearly a very difficult time for them. I have done my best to explain why we cannot accept the amendments that the noble and gallant Lord raises tonight, nor later on in the Bill. They need to wait until the noble and learned Lord, Lord Cullen, has reported.
The Minister said, in his letter to me, that he would be prepared to consider some definition of active service other than the one on which the Bill relies—the definition in the Armed Forces Act that affects solely the offence of desertion. I wonder whether he could go so far as to be prepared to bring forward some suggested amendment to the Bill that would meet that point.
I am grateful to the noble and gallant Lord. In my letter, I said:
“I fully recognise the disquiet that the cross-reference to Section 8 of the 2006 Act may cause. While I cannot undertake to bring forward an amendment to the Bill, I am ready to look again at the drafting of Clause 14 to see whether the definition of active service could be set out in full there rather than cross-referencing it to Section 8”.
I stand by that today.
Does that mean that the Minister will, at Report stage, be in a position either to bring forward an amendment to Clause 14(6) along the lines suggested by the noble and gallant Lord, Lord Craig, or at least to indicate that at some stage in the legislative process such an amendment will appear? It is very difficult to see what the problem is. All it requires is for the definition to be set out in the Bill without any reference to other legislation in which context it has rather an unfortunate ring about it.
Amendment 38 withdrawn.
Amendments 39 and 40 not moved.
Clause 14 agreed.
Clause 15 agreed.
House adjourned at 10.02 pm.