Coroners and Justice Bill

My Lords, I am most grateful to the Minister. I was not about to make a constitutional point about the inappropriateness of making such an announcement; I was simply using the press release to explain to your Lordships’ House—for those noble Lords who have not read it—what the right honourable gentleman, Mr Straw, said. He stated that, ""following further discussions in the House and with interested parties it is clear the provisions still do not command the necessary cross party support and in these circumstances the Government will table amendments to remove clauses 11 and 12 … from the ""Bill. Where it is not possible to proceed with an inquest under the current arrangements, the Government will consider establishing an inquiry under the Inquiries Act 2005 to ascertain the circumstances the deceased came by his or her death".—[Official Report, Commons, 15/5/09; col. 68WS]" As I understand it from what the Minister said, he will come forward with amendments in relation to this matter in Committee. However, I should like for a few minutes to point out to him one or two of the potential pitfalls of the Inquiries Act, if it is the Government’s intention to use it for the purposes that Mr Straw announced. First, in what circumstances can such an inquiry be convened? Here we should look at Section 1(1), which states: ""A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that—""(a) particular events have caused, or are capable of causing, public concern, or""(b) there is public concern that particular events may have occurred"." This is a very wide-ranging discretion that has been given to the Minister. Will the noble Lord bring forward in Committee or on Report a clause constraining the Minister’s discretion to an appropriate level in relation to the task that the Secretary of State for Justice seeks the Inquiries Act to perform? It is clear that a High Court judge can be appointed to be chairman of an inquiry, but the Secretary of State, under Section 3, has discretion as to whether to add other members. I presume that one consideration might be whether certain lay members should sit with the High Court judge in lieu, in a sense, of a jury. The section that most worries me, however, is Section 5, which states in subsection (1): ""In the instrument under section 4 appointing the chairman, or by a notice given to him within a reasonable time afterwards, the Minister must … before that date… set out the terms of reference of the inquiry"." That is a very reasonable requirement. However, Section 5(3) goes on to say: ""The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires"." Subsection (4) states: ""Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman"." One can envisage a situation in which a High Court judge has been appointed and has accepted the terms of reference; then, at some stage during the inquiry, the Minister suddenly issues an alternative term of reference. There is, indeed, an obligation to consult the judge; but the judge lacks the power to veto the Minister’s decision to alter the terms of inquiry. I could go on about the details; but I hope and trust that your Lordships will have heard enough to know that it will simply not be enough for the Government to say, "We will use the Inquiries Act as a substitute for Clauses 11 and 12". Your Lordships’ House needs a great deal more than that. I will deal with other parts of the Bill as swiftly as I can, because I know that there is a large number of speakers. Clauses 45 and 46 seek to abolish the common law defence of provocation. That was one of the matters considered by a wide-ranging Law Commission report on murder, published in 2006. Frankly, to refer back to what I said at the beginning of my speech, I would far prefer that matter to have been dealt with in the context of a wider reform of the law of murder; and, as a matter of detail, I simply do not understand why, in the Government’s search to raise the hurdle for a plea of provocation, sexual infidelity is singled out as an issue that would not be accepted as a provoking factor. There are important provisions on encouraging or assisting suicide. As your Lordships’ House would accept, they are entirely a matter of conscience. I await with interest the debate on that issue, to which I shall listen and perhaps participate in. Clauses 54 to 58 deal with prohibited images of children. We entirely accept the necessity for these clauses in the Bill. Clause 61 concerns hatred against a person on grounds of sexual orientation. I am sure that most of your Lordships are aware that the clause seeks to reverse the decision of your Lordships’ House in the debate and vote last spring when your Lordships approved the amendment moved by my noble friend Lord Waddington—now Section 29JA of the Public Order Act 1986. I voted for my noble friend’s amendment at the time and I intend to do so again. However, let me add one point. The Minister said that the Government stated at the time that they intended to bring back this matter at a later stage. I do not remember exactly what the Minister said at the appropriate moment; but surely the correct constitutional approach for the Government to have taken would have been to reverse, in another place, the amendment moved by my noble friend Lord Waddington and to have come back to your Lordships’ House in the usual way. The Government chose not to do that. Therefore, I do not think it constitutionally proper for the Government to raise the issue at the first opportunity after those events took place. Your Lordships are entitled to conclude that the Government had reached the decision that the amendment moved by my noble friend Lord Waddington was acceptable. That should, in my submission, be taken into account by your Lordships when we make up our minds how to deal with the issue which will undoubtedly be before us again as we consider the Bill. The clauses on anonymity of witnesses broadly reflect the emergency legislation, which we previously supported. I just make two observations. First, I am sorry not to see in the Bill an initiative that received particular support from the noble Lord, Lord Thomas of Gresford, involving a statutory procedure that would give power to the judge to appoint special counsel to look into an application by the prosecution for the anonymity of certain witnesses. I know that there is a common law power for a judge to refer the matter to the Attorney-General; but it is used rarely, the procedure with respect to it is unclear and, when it is used, it has proved time-consuming. Frankly, I do not understand why the Government are not prepared to put this matter on the face of the Bill. My second observation is the inescapable fact that our hands are tied down tightly by the case of Davis, which itself flows from the jurisprudence of the European Court of Human Rights. Where the credibility of a witness is the decisive issue in a case, it will simply not be appropriate or, ultimately, useful to use the anonymity provisions, however tempting they are in the context of matters such as gang warfare. As the Minister will have seen from studying the proceedings in another place, the Opposition have grave reservations about the terms of reference for the new Sentencing Council for England and Wales. I know that there is a saving clause referring to the "interests of justice"; but what worries me about all this is that judges are increasingly seen—if I may put it bluntly—as civil servants. They are not seen as independent under the throne, as they ought to be viewed constitutionally. The constraining of their discretion in the Bill is at least one and possibly two steps too far. I know that the Minister will say that a very distinguished—and indeed he is very distinguished—Lord Justice of Appeal, Lord Gage, reached certain conclusions in his report. However, his report makes it clear that he expects a number of other things to happen before the approach that the Government take in the Bill is adopted. We were very pleased that the Government decided to withdraw those parts of the Bill that dealt with information sharing. We broadly support what remains on this matter, although we would like to see specific provisions in place to address situations where information is carelessly lost. There are other matters of importance in the Bill to which I have not had time to refer. I am delighted to say that my noble friend Lord Henley will be winding up on behalf of the Opposition and I have no doubt that he will cover any gaps that I have left.