Counter-Terrorism Bill - Consideration of Lords' Amendments

19th November 2008

Mr. Garnier: The interchange between my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Somerton and Frome (Mr. Heath) has been more illuminating than is often the case in debates of this sort. My right hon. and learned Friend has analysed not only what is wrong with the Bill and the Lords amendments, but how they can be improved. I was not a Minister, but I was on the edges of Government when he was in Government. I entirely accept what he says on the need, occasionally, for information to be kept out of the public domain. That is simply a matter of common sense, and I hope that none of us is naive enough to think that on every occasion, every piece of information in the hands of a state agency or the Government should be made public. Clearly, there are times when national security and the interests of criminal investigation require certain pieces of information to be kept out of the public’s sight.

Having said that, the implied, but not the express, position of a number of Members who have spoken in the debate, perhaps excluding the Minister, is that, by default, justice should be in public. When all things are equal—they rarely are—coroners’ courts, whether chaired by a High Court judge or other judicial officer, should be in open court, with all relevant evidence being adduced, either before the coroner, if he is sitting alone, or before the coroner and the jury; and there should be full disclosure of all evidence between the interested parties and the court.

The group of Lords amendments that we are briefly considering lead me to agree again with my right hon. and learned Friend, this time on how the kind of decisions that we are talking about should come to be made. As I understand it, at the moment, the Government want to place in the hands of the Secretary of State the power to issue certificates. That is unhealthy. It leads to secret government, let alone secret trials. Like my right hon. and learned Friend, I think that it would be much more sensible and, indeed, publicly more acceptable, for questions of that sort to be decided by the presiding coroner, be he a High Court judge or other judicial officer. In that way, the matter could be argued. It could be argued in chambers or in private, but it could none the less be argued.

Clearly, such procedures are not novel. For example, espionage cases are tried at the central criminal court; and cases involving matters of acute sensitivity often involve applications to the judge that certain parts of the evidence, or all of it, should not be disclosed in public, meaning that it should not be heard in the presence of people in the public gallery or members of the press. Such things do not happen every day, but they happen quite frequently, so I do not see why a similar procedure could not be drawn across into the system of coroners’ inquests. The Lords amendment mentions a High Court judge, but I have no doubt that any experienced coroner, circuit judge or whatever judicial officer is appointed to deal with any inquest, could make a decision on the grounds of national security, public safety or whatever, in a just and sensible way, case by case.

My second point is this: we were promised a coroners Bill in this Session’s draft legislative programme and in the last Queen’s Speech, and we are being promised one in the coming Queen’s Speech, and it strikes me that the issues we are discussing ought to be dealt with discretely, in the round, in a coroners Bill. However, measures are now being tacked on to a Counter-Terrorism Bill.

This brings into our discussions all sorts of interesting influences. Hon. Members will remember the problems that the Prime Minister got himself into with the Government of Iceland, who were deeply upset that Icelandic assets in this country had been frozen under counter-terrorism legislation. It so happened that the Act under which the Government froze those assets in London was the Anti-terrorism, Crime and Security Act 2001, and it was under the “Security” bit that the assets were frozen. However, the Act’s rather long title did not fit into the headline space of whatever the equivalent of The Sun is in Reykjavik, so Icelandic people saw only the “Anti-terrorism” bit. Unsurprisingly, they were upset.

Here, we are dealing with matters to do with inquests in a Counter-Terrorism Bill. Of course there is sometimes a connection between terrorist activity and inquests. For goodness’ sake, the tube and bus bombings of July 2005 made that only too clear. However, if the Government are to be taken at their word on this occasion—I do take them at their word from time to time—why will they not lift part 6 out of the Bill and put it into the new coroners Bill, which they should introduce early in the next Session? That might lower the temperature.

I should like to say, in parenthesis, that my hon. Friend the Member for Ashford (Damian Green) was entirely right to express concern about the application of article 2 of the European convention, as was the hon. Member for Islington, North (Jeremy Corbyn), who also brought that point to the fore. A further point that I want to draw out from what the hon. Gentleman said earlier relates to the nature of the deaths that we are talking about. The provisions will deal with deaths in police custody and possibly even deaths in prison custody, depending on the character and antecedents of the deceased and on the geography of the location of the death. The hon. Gentleman will remember that—in the last Parliament, before the 2005 general election, I think—we passed the Corporate Manslaughter and Corporate Homicide Act 2007. I might have got the chronology wrong, but as I recall it, the deal was that deaths in custody, in the prison service and in police cells, were not immediately to be brought under the remit of the Act. There was to be a delay of two or three years—

Mr. Hogg: I think that it was more than that. I think it was seven.
Mr. Garnier: My right hon. and learned Friend says that it might be seven years. The Minister will have that information available to him—

Mr. Hogg: He seems to be looking to his left.
Mr. Garnier: I am making a suggestion; I have no power over those who work behind the Chair. However, I dare say that somebody with a bit of initiative, such as the Minister, could find out the answer.

The point is that there will come a time when deaths in custody, involving those either in the care of the police or in the care of the Prison Service, might also have to be considered under the terms of the Corporate Manslaughter and Corporate Homicide Act. When we come to consider these provisions—I suggest that we do so under a coroners Bill, not under this legislation—the House will need advice from Home Office Ministers on the marriage of that Act and inquests into deaths in lawful custody. I urge the Minister to bear that in mind, because I can see all sorts of problems coming down the track. Trials under the corporate manslaughter legislation will be heard in the Crown court. Is it being suggested that, if someone has allegedly been killed by the police under the provisions relating to corporate manslaughter, the trial should be heard in secret, and only by a High Court judge, subject to the provisions of the Counter-Terrorism Bill?

It is not only members of the public, be they British or foreign nationals, who will be drawn into the inquest system. Military deaths have been mentioned. We all know of the huge delays in the timetable for inquests into those killed in action or on active service in Iraq. Their bodies are brought back to the UK through Brize Norton, and the coroner for Oxfordshire is therefore responsible. One particular deputy coroner has done most of the work. However, because there is such a dearth of qualified coroners to do the work, there are long delays, which leads to emotional and other problems for the families, as other hon. Members have said.

Yes, the legislation is designed to provide an effective coroners’ system, but effective for whom? I suspect that it is designed to be effective for the Government, because they do not want any embarrassment. They do not want coroners to say disobliging things about how the Ministry of Defence, or some other agency of the state, has acted.

The issue is even more complicated because while there are people who are killed in action or on active service in open battle—we are all too sadly used to seeing television reports of such incidents nowadays—there are people killed whom the Government would rather we did not know were on active service. We cannot be naïve about the need to keep some matters out of the public domain, but the families of those who serve in the special forces or the secret services have as much of a right to know how and why their loved ones were killed or died as those who are grieving the loss of someone killed in a motor accident or a train crash—a more ordinary, but none the less terrible, death.

We cannot just assume that we are talking here about cases of terrorists or suspected terrorists dying in prison or police cells. We may be dealing with the deaths of people who are seeking to protect us from terrorists, and their families being prevented from having full access to information about those deaths. There are two ends to the spectrum and plenty of grey territory in between. If we are to pass this Bill as it stands—and we are doing this in the wrong order, because we should have a coroners’ Bill in the new Session—we must come as close as we can to article 2 compliance; otherwise we will be misbehaving.

My final point is about the current use of public interest immunity applications and certificates. My right hon. and learned Friend the Member for Sleaford and North Hykeham is an experienced practitioner in the criminal courts and he will be well aware of the use that those acting on behalf of the Government—and I use the word “Government” in its widest sense to include the police, the secret services and so on—make of applications for PIIs, so that sensitive information does not reach the public domain. Again, that is not an unusual procedure, and we should learn from it when we consider the Lords amendments and the Government’s response to them. There are practical solutions that enable us to comply as best we can with article 2 and to allow the bereaved to have the necessary information to understand why their loved ones were killed or died. There is sufficient good will across this House and between the two Chambers of Parliament to enable us to arrive at a sensible solution. I am not sure that the Government’s solution can be classified as sensible at the moment.

Of course, I accept that Lords amendment No. 106 is not ideal. It is not perfect. However, as others have said, we can build on it. I suggest that we do so.