Counter-Terrorism Bill

I am a member of the Joint Committee on Human Rights, which has just been mentioned. I was perhaps the only person who spoke on this subject at Second Reading on 8 July; I shall not bore the Committee by repeating most of what I said then. I began by drawing attention to something that sounds immensely boring but is important: the Explanatory Notes on the Bill wholly failed to deal with the human rights implications of the radical proposals being made in Part 6 about coroners. The Minister was courteous enough to write to me, doing his best to explain that omission; I thank him for that. The Joint Committee on Human Rights explained in its report in October why it did not find that explanation satisfactory. In January 2008, shortly after the Bill was published, the committee made clear the nature of the human right concerns over the provisions. They do not rest on any claim that the convention requires inquests to be held with a jury. They concern the effect of the provisions on the ability of the UK to comply with the positive obligation in Article 2 of the convention to provide an adequate, effective and independent investigation, including sufficient public scrutiny and involvement of the next of kin where an individual has been killed as a result of the use of force, particularly by state agents. The committee said: "““We find extremely regrettable the Government’s continuing failure to provide an accessible explanation, in the Explanatory Notes to the Bill, for its view that the provisions are compatible with Article 2 ECHR””." Why does that matter? It matters because there is a dedicated committee of both Houses whose job it is to monitor whether proposed legislation is or is not compatible with convention rights. That role cannot properly be performed unless the government department concerned plays with its cards face up on the table rather than concealing them. Otherwise, there is then a wholly unnecessary procedure in which the committee has to ask the Home Office and Ministers to deal with points that the Explanatory Notes could have dealt with perfectly well in the first place. This wastes time and resources, and hampers the role of both Houses of Parliament in scrutinising government legislation. Many departments are not guilty in this respect. I am not suggesting that the Home Office is alone in being guilty, but there was a deplorable lack of candour and thought by the department when the Explanatory Notes were first drafted. The committee takes a serious view of the matter. I am not suggesting that it is worth going into past history any more, but the committee hopes that this will not happen again. We on the committee greatly welcome the fact that the Government have at last seen fit to take these provisions out of the Bill. Indeed, in my speech in July, I said that I hoped that sunset would come in October; it has done so, in the sense that we will now have these unsightly provisions excised. What is not good news is that the Home Office proposes to come back to them in a coroners Bill. We ask that there should be full public consultation on that proposal before that happens. I hope that the Minister will be able to assure us that there will be. The convention requirements—the positive obligations on all states—are clear. During the debate in the other place on 10 June, the admirable shadow Home Secretary—I hope he will not mind my saying that—Dominic Grieve QC MP and Mr Dismore MP, chair of the JCHR, explained that the convention imposes a positive obligation on the state to provide an adequate and effective investigation where someone has been killed as the result of the use of force, particularly by state agents. Those conducting the investigation have to be independent; there must be enough public scrutiny to secure accountability in practice as well as in theory; and the next of kin must be involved. The procedure imposed by the Bill would empower the Secretary of State to certify that the inquest should be conducted without a jury and with a special coroner if, in the Minister’s opinion, it is in the interests of national security or in the interests of the relationship between the UK and another country, or if it is otherwise in the public interest. Therefore, the Secretary of State seeks, or was seeking, sweepingly broad discretionary powers, going well beyond those needed to counter terrorism. I described the Government’s excuse for this as an example of what I called Home Office chutzpah, but most of your Lordships did not know what that meant. It means in Yiddish an infernal cheek, and that is what I think this was. Independence is essential and a system based on the special appointment of security-cleared coroners by the Minister would inevitably involve serious breaches of convention rights and obligations because it would be fatal to any appearance of independence. Dominic Grieve MP rightly asked: "““What is the point of suddenly dispensing with juries? … it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings. … If … the Government came forward with other ideas and proposals … that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake””.—[Official Report, Commons, 10/6/08; col. 249.]" I entirely agree with that and I agree with the Justice Committee in the other place, which called for the proposals to be withdrawn pending more detailed scrutiny and the proposed coroners Bill, as did the Joint Committee on Human Rights. So for all those reasons it is most welcome—