Coroners and Justice Bill

My Lords, as the Minister mentioned, the Secretary of State for Justice made a Written Statement in the other place last Friday. He explained that the Government will table an amendment to remove Clause 11 and its associated Clause 12. One does not want to kick a clause when it is down, but the sorry saga of Clause 11, with its power for the Secretary of State to dispense with a jury in an inquest, deserves to be noted in the hope that the Government and their successors may learn some lessons as to how not to proceed when making legislative proposals in relation to the judicial process. I am also concerned that the Government still do not understand the issues raised by Clause 11. Clause 7 rightly maintains the principle that inquests into particular categories of death should be heard before a jury. That is in order to maintain public confidence in the exercise of state power; for example, if there is reason to suspect that the deceased died in custody or otherwise in state detention, or as a result of an act or omission of a police officer. Your Lordships will recall that in 2008, the Counter-Terrorism Bill contained provisions allowing Ministers to dispense with juries where sensitive information was involved. Those proposals were introduced without prior consultation. Your Lordships’ Constitution Committee, under the chairmanship of the noble Lord, Lord Goodlad, issued a report criticising the proposals as "constitutionally inappropriate", because Ministers would be given the power to decide how an inquest should be conducted rather than needing to apply to a judge to exclude a jury. The parliamentary Joint Committee on Human Rights then criticised the Secretary of State’s failure to explain how the proposals could be consistent with Article 2 of the European Convention on Human Rights on the right to life. The Government withdrew the proposals, but then this Bill was introduced containing very similar provisions. Again, there was no prior consultation. The Joint Committee on Human Rights repeated its concerns, and concluded that there was no need for the provisions. The proposals generally received a hostile response. In the light of the criticism, the Secretary of State then tabled amendments to Clause 11 on Report in the other place. Those amendments were inadequate to deal with fundamental defects in Clause 11, as explained fully in the briefing by the organisations Inquest, Liberty and Justice. Any noble Lord who has read that briefing will be puzzled indeed that the Secretary of State still suggested, as he clung to the wreckage of Clause 11 last Friday, that the clause, ""struck a fair and proportionate balance",—[Official Report, Commons, 15/5/09; col. 68WS.]" between competing interests. When he replies to this debate, will the Minister please assure the House that the Government will learn from an episode that should cause them deep embarrassment? They need to consult before they come forward with legislative proposals on sensitive issues relating to the judicial process, and they need to listen more carefully to what other people say in order that their legislative proposals are coherent and principled. I remain concerned that although, belatedly, Ministers have now conceded defeat on Clause 11, the Government still do not understand the issues raised by that clause and by the opposition to it. As the Minister told us this afternoon, the Government now say that they will consider establishing in exceptional cases an inquiry under the Inquiries Act 2005 to ascertain the circumstances of a death where evidence cannot or should not be disclosed to a jury. However, those exceptional cases are precisely the ones where the maintenance of public confidence will most require that the evidence is heard by a jury. The recent inquest into the death of Mr de Menezes, the Brazilian citizen tragically shot by police officers at Stockwell station because of mistaken identity, involved the consideration of highly sensitive evidence concerning the Metropolitan Police’s policies for addressing the threat posed by suicide bombers. A High Court judge sat as the coroner in that inquest with a jury. To the extent necessary, the coroner made a number of rulings restricting the disclosure of sensitive documents and information through the use of public interest immunity certificates, witness anonymity orders and the exclusion of the public, where appropriate. If such measures sufficed in the de Menezes case, why is it necessary, I ask the Minister, to dispense with a jury in any other inquest? If and to the extent that the legal problem is that the Regulation of Investigatory Powers Act 2000 prohibits the disclosure of intercept evidence to a coroners’ jury, then the solution is to adopt something similar to Clause 12 of the Bill, no longer being pursued, and that is to allow a High Court judge sitting as a coroner to authorise such disclosure to a coroners’ jury where necessary to ensure a fair inquest.