Coroners and Justice Bill

Public Bill Committee, 3 February 2009.

Frank Cook (Labour, Stockton North)

Before we begin, I have a few preliminary announcements to make. Members, if they wish, may remove their jackets during Committee sittings, but will all Members please ensure that all mobile phones and pagers are turned off or at least switched to silent running? We do not want any disturbance.

I remind the Committee that there are money and ways and means resolutions in connection with the Bill and copies are available in the room. I should also like to remind Members that adequate notice should be given of amendments if they are to be eligible for selection. For a Tuesday sitting, amendments must be tabled by the rise of the House the previous Thursday and, for a Thursday sitting, amendments must be tabled by the previous Monday. As a general rule, I and my fellow Chairman do not intend to call starred amendments.

Not everyone is familiar with the process of taking oral evidence in Public Bill Committees, so it might help if I briefly explain how we will proceed. It will not only be helpful to you, but it will also be very helpful to me. The Committee will first be asked to consider the programme motion on which debate will be limited to half an hour. We will then proceed to a motion to report written evidence and then to a motion to permit the Committee to deliberate in private in advance of the oral evidence sessions. I hope that we can take both motions formally.

Assuming that the second of the motions is agreed, the Committee will then move into private session. Once the Committee has completed its deliberations in private, witnesses and members of the public will be invited back into the room and our oral evidence session will commence. I hope that that will be at around 11 am.

If the Committee agrees to the programme motion, it will hear oral evidence today and on Thursday. It will then revert to the more familiar proceedings of clause-by-clause scrutiny.

Bridget Prentice (Labour, Lewisham East)

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 3 February) meet—

(a) at 4.00 pm on Tuesday 3 February;

(b) at 9.00 am and 1.00 pm on Thursday 5 February;

(c) at 10.30 am and 4.00 pm on Tuesday 10 February;

(d) at 10.30 am and 4.00 pm on Tuesday 24 February;

(e) at 9.00 am and 1.00 pm on Thursday 26 February;

(f) at 10.30 am and 4.00 pm on Tuesday 3 March;

(g) at 9.00 am and 1.00 pm on Thursday 5 March;

(2) the Committee shall hear oral evidence in accordance with the following Table—

TABLE

Edward Garnier (Conservative, Harborough)

I associate myself and my hon. Friends with the Minister’s remarks and welcome you, Mr. Cook, to the Chair. We also look forward to the chairmanship of Mr. Gale.

Like the Minister, we hope that this will be a constructive Committee. The last occasion that we sat under your chairmanship, Mr. Cook, was when we considered the Criminal Justice and Immigration Bill last year and, rather like London buses, Home Office and justice Bills follow each other in whizzing round the corner. My hon. Friends and I will do our best to provide grit on the road so that these buses can gain better purchase on the surface, but I have to say at the outset that this Bill is another plum duff. I accused the Government of producing a great, fat Bill last year—most of it was duff; there were a few plums—and the same can be said of this Bill. I cannot guarantee to be as generous to the two Ministers on this Committee as I was to the Minister of State, Ministry of Justice, the right hon. Member for Delyn (Mr. Hanson), to whom I gave a Christmas pudding rather than a plum duff at the end of our deliberations. Unfortunately, the House of Commons shop does not sell plum duffs, so he had to make do with a House of Commons Christmas pudding that looked suitably like the kind of infernal device that one might throw at early 20th century Austrian archdukes.

This is another long Bill. It has 162 clauses and 21 schedules and each of the schedules is divided up into several parts. My complaint at this early stage is that this is too big a Bill and covers too many discrete subjects. It should be divided up into separate Bills. Of course, the Government are in a hurry—time is running out for them—but we will do our best to try to make sense of nonsense and to improve what is almost capable of being described as sensible. We will applaud where appropriate those provisions that we think will enhance the criminal or coronial law.

Although we may take a different view as we make progress, at this stage we can agree with the Minister’s motion for the timetabling of the Committee, but we reserve our right to come back to seek adjustments if necessary. We look forward to constructive if sometimes controversial debate.

David Howarth (Liberal Democrat, Cambridge)

I am grateful to the Government for acceding to my suggestion that we move up consideration of the data-protection provisions in the Bill. Someone in opposition of a suspicion mind might think that all that has happened is that we have not spotted the contraband and that it is somewhere else in the Bill. To that degree, I agree with the hon. and learned Member for Harborough. This is a very long Bill that, at a conservative estimate, contains 28 different topics for consideration. It amends 56 pieces of previous legislation and, even in the time that the Committee has been given, it will be difficult to consider all aspects of the Bill properly. If at the end of our deliberations parts of the Bill have not been considered or have not been considered at the length or with the depth that they deserve, I hope that the Government will think generously about offering more than one day for Report. That has just happened with the Political Parties and Elections Bill, as the Committee got nowhere near discussing all the important matters that it raised. This Bill is even longer, even bigger and covers even more subjects. Although I make that important request, I do not at this stage intend to divide the Committee on the programme motion.

Frank Cook (Labour, Stockton North)

We shall now hear oral evidence from the Ministry of Justice. For the record, would you like to introduce yourselves to the Committee, please?

Frank Cook (Labour, Stockton North)

Thank you. Before calling the first question, I remind all hon. Members that questions should be limited to matters within the scope of the Bill. We must stick strictly to the timings in the programme motion, which the Committee has agreed. I hope that those questions are within the framework of what we agreed in private. I hope that I do not have to interrupt mid-sentence, but I shall do so if I need to.

Edward Garnier (Conservative, Harborough)

I direct this question at either of the Ministers, and would be happy for either to answer. Why have you thought it appropriate to design such a lengthy and diverse Bill? It is 162 clauses long, has 21 schedules, which are divided up into several parts, and covers a huge number of discrete public policy areas. Why do you design Bills like this? [Interruption.] If you do not know, please say so.

Edward Garnier (Conservative, Harborough)

Could you explain a bit more about the logic?

Edward Garnier (Conservative, Harborough)

It is not a logic that I quite understand, at least not as currently presented. For example, how do provisions to do with child pornography or indecent pseudo-photographs tie in with the thread that you say runs through the Bill? How does the thread connect to the reform of the coroners system?

Edward Garnier (Conservative, Harborough)

When looking at the index of the Bill, a reasonable person could, quite legitimately, comment that Ministers have been running around the Department pulling things off shelves and sticking them into the shopping trolley to create a long Bill. Why has the legislative process not been managed in such a way that we have a discrete coroners Bill? We were promised one a while ago. Would it not be more sensible to run the reform of the coroner system through a discrete Bill, rather than tagging matters relating to legal aid, vulnerable and intimidated witnesses, and other substantive criminal justice issues on to this Bill?

Edward Garnier (Conservative, Harborough)

Why did you not accept the recommendations of the Law Commission on the reform of the law of homicide? You picked out some bits, but left out others. That seems to have created a rather difficult picture for you, does it not, when attempting to reform an important part of the criminal law relating to the killing of other people? You picked some plums out of the commission’s report, but left a lot of stuff behind, which could—if you two Ministers are right in your description of the shape and design of the Bill—perfectly properly have come into the Bill. It might have made it longer, but we are used to that.

Edward Garnier (Conservative, Harborough)

May I ask one further question? Clause 58 repeals a provision that was introduced under the Criminal Justice and Immigration Act 2008 on Report. That provision has not even come into force, yet you are repealing it already. Your Government have a history of passing lots of Bills that repeal other enactments that were recently passed. The Criminal Justice Act 2003 is a classic example of that. Huge chunks of it were repealed before they were due to come into force, and parts that have come into force have also been repealed. Can you guarantee that no parts of the Bill under discussion, as currently drafted, will be repealed before your next Criminal Justice Bill comes into effect, and that we can work forward at least on a moderately planned basis in line with this particular Bill, or will new stuff be brought in on Report?

Edward Garnier (Conservative, Harborough)

Forgive me, I do not want to discuss the merits or demerits of clause 58.

Edward Garnier (Conservative, Harborough)

Do you not understand that that leads to cynicism about the construction of legislation?

David Howarth (Liberal Democrat, Cambridge)

On that point, as the person who called the final vote on the last bit of ping-pong because I wanted to protest against the Government giving in on that last round, I confirm what the Minister has just said. The Government were plainly coerced by a timetabling issue—of their own making—and I am not surprised that they have returned to the matter.

To return to the law of murder, I am disturbed about this piecemeal approach.

Frank Cook (Labour, Stockton North)

While you are doing that, David, could you speak up a little?

David Howarth (Liberal Democrat, Cambridge)

Sorry, I will sit nearer the microphone. The piecemeal approach to the law of murder is unsatisfactory. The impact assessment on the Bill says that the proposed changes in the partial defences will increase the number of people convicted of murder as opposed to manslaughter by between 100 and 200. I raised that on Second Reading, but it was not the correct setting to do so, so I am asking again: who are those people? What kind of defendant will, as a result of the proposals, now be found guilty of murder rather than manslaughter?

David Howarth (Liberal Democrat, Cambridge)

I am worried about the changes to diminished responsibility. By making that defence more precise, and with reference to recognised medical conditions, there is a danger of people who perhaps come under the category of those with learning disabilities who might not be said to have a recognised medical condition, being caught by the law of murder rather than manslaughter. I am worried about that.

On the provocation defence—the replacement of provocation—what is the evidence for the figure of 100 to 200? If you look at the standard legal databases to see what is going on in the provocation defence, you will see that convictions for manslaughter on the grounds of provocation where there has been sexual infidelity are rare in recent years. Normally what happens these days is that such cases either succeed or fail on diminished responsibility, so provocation does not come into it. I do not see the 100 cases. On the serious violence side, the numbers go the other way. For the most part these days, in the battered wives cases, the law goes in their favour. I do not see that moving in the way that the Minister says either.

The problem is that, if you look at the words in the Bill, they seem to suggest a rather different sort of person being found guilty of murder. For example, there are such people as those raised in the Doughty decision of the 1980s. A stressed-out parent who loses his or her temper and strikes a child, could be guilty of homicide, yes, but the decision in that case was manslaughter not murder. Those defendants would not qualify any more, because they do not have any justifiable sense of being seriously wrong.

David Howarth (Liberal Democrat, Cambridge)

May I ask about loss of control? That is the standard problem in battered wives cases. They find it difficult to come within the existing defence of provocation, because of the requirement of loss of control. The obvious way to reform the law to help battered wives is to get rid of the idea of loss of control. The Government have kept that idea in the Bill, but how does that help? Clause 41(2) talks about “loss of control” not being “sudden”, but it is not the suddenness of the loss of control that matters; it is having to prove some sort of loss of control.

David Howarth (Liberal Democrat, Cambridge)

But the fear of serious violence requirement is about not only the fear of serious violence, but cases where the defendant’s loss of self-control was attributable to serious violence. There still needs to be that loss of self-control. That leads to the central example in the battered wives case. Suppose a wife is abused for a long time, and after a particularly bad incident of being beaten up she waits for her husband to go to sleep and kills him. I do not see the loss of control in that case, but I think that under the Bill that person would be convicted of murder.

David Howarth (Liberal Democrat, Cambridge)

But they had to lose control.

David Howarth (Liberal Democrat, Cambridge)

Mr Cook, do you want me to go on to data protection now?

Frank Cook (Labour, Stockton North)

No, I want to stick to this section if you do not mind.

Brian Iddon (Labour, Bolton South East)

I have a question on death certification. I hope that it is in order.

Frank Cook (Labour, Stockton North)

No. We had you down on murder, infanticide and suicide. Assisted suicide is at the end.

Brian Iddon (Labour, Bolton South East)

Then I will wait.

Frank Cook (Labour, Stockton North)

Okay. So if we have finished the first section, we will move on to the possession of a prohibited image of a child. If nobody is interested in that, we will move on swiftly to witness anonymity. Alun Michael.

Alun Michael (Labour, Cardiff South and Penarth)

On the issue of the possession of images, rather than not being interested in it, it is that we do not feel a need to probe it at this stage. It will come up in later evidence.

Frank Cook (Labour, Stockton North)

Semantics.

Alun Michael (Labour, Cardiff South and Penarth)

Very important semantics.

Frank Cook (Labour, Stockton North)

Yes indeed, carry on.

Alun Michael (Labour, Cardiff South and Penarth)

It is easy to argue on either side about witness anonymity, and to show examples where not knowing where evidence is coming from makes it difficult for an innocent accused to provide a defence. However, most MPs will have had experience of places where intimidation of people within a community for an extended period means that the protection of witnesses is the only way that can be tackled and issues can be brought before the court. How will the drafting of the clauses ensure no unintended consequences on either side of that difficult balance?

Alun Michael (Labour, Cardiff South and Penarth)

Some people have criticised the fact that an order may be granted to prevent serious damage to property. How would you justify that?

Edward Garnier (Conservative, Harborough)

May I interrupt and ask the Minister a question about the figures, which were very helpful? How many cases in the list were ongoing prior to the passage of the emergency legislation?

Edward Garnier (Conservative, Harborough)

Do you think that you could?

Alun Michael (Labour, Cardiff South and Penarth)

Those figures show that a majority of non-civilian cases have come up. One of the queries was that clause 71(3)(b) provides that a witness anonymity order may be granted in cases where there is

“real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).”

That has been interpreted as being intended to protect undercover officers. The Minister suggests that that protection is being afforded in a large number of the cases when an application is made. Why is that clause necessary? If it is to protect undercover officers, why does it not actually say so?

Alun Michael (Labour, Cardiff South and Penarth)

Given the helpful and illuminating figures that you have put before us, are you satisfied that sufficient use is successfully being made of the cases that I have mentioned of community terrorisation or intimidation, which I think were in the minds of many MPs in supporting the legislation previously and now?

Frank Cook (Labour, Stockton North)

You tapped a vein of gold there, Mr. Michael.

Tim Boswell (Conservative, Daventry)

The statistics are very useful, Minister, and I understand what you are trying to do. In the failed cases, of which there were six, can you indicate whether there is any evidence as to the nature of the failure? For example, were there cases where it was impossible to establish a threat to personal safety, but where there might have been a real threat to property—something that would be brought in under the new law—as that would seem to be justification for what you are proposing? Equally, although it is more difficult to get a handle on this, were there cases where applications may not have been made or were frustrated, because, although you could go as far as the threat to property test, you could not actually demonstrate at the time that there was a direct threat to the individual’s personal safety? I just want to get a handle on how valuable it would be extend the existing provisions.

David Howarth (Liberal Democrat, Cambridge)

That will be very helpful. I have two other questions about the numbers cited. First, how many times were special independent counsel appointed in any of those cases? That was one of the big substantive problems in the Bill—there were lots of technical problems in the Bill, which we shall have to come back to, because we do not want to go into them now—but that was the one area of policy on which there was some disagreement. Secondly, how many appeals have there been and what kind of appeal activity has there been? What have the appellate courts said about the provisions?

David Howarth (Liberal Democrat, Cambridge)

That was a transitional case though, was it not?

Frank Cook (Labour, Stockton North)

Now, for practical purposes and out of sequence, I shall go immediately to coroners.

Henry Bellingham (Conservative, North West Norfolk)

My first question for Mrs. Prentice is about the new framework. Obviously, broadly, we shall have national oversight—a national coroner and a national service—but also, quite rightly, we shall keep the best of the localism that is in place. One of the concerns that local authorities or police authorities will have is funding and resourcing. Expectations will be raised by the changes in the Bill, but how are resources going to be made available to ensure that we have, across the country, an effective and efficient service?

Henry Bellingham (Conservative, North West Norfolk)

There are some detailed questions that we shall come on to in Committee, but will you explain why you feel that it has to be a lawyer—a barrister or a solicitor—who fills those posts, rather than a suitably qualified medic? Some coroners practising today are doctors, and they are doing a superb job. I note that the Bill says that they will be able to continue, but that there will be a phasing-out of the medics. My concern is that we may be excluding a potential pool of good coroners in the future, if we do not allow medics to fill such positions. I speak as a lawyer, so I have a vested interest.

David Kidney (Labour, Stafford)

If, in the future, a local authority were unreasonably to starve a coroner’s service of resources, would the Department back the local authority in undermining the coroner service in that way? Do you accept that there are no provisions in the Bill enabling you to do something about it, even if you did not agree?

David Kidney (Labour, Stafford)

Should there be a power, eventually, for the Ministry to step in if that is the case—especially if the chief coroner is saying that that is unacceptable?

David Kidney (Labour, Stafford)

These things happen, Minister.

David Kidney (Labour, Stafford)

I have a few more questions about resources. The Secretary of State seemed quite sympathetic on Second Reading about the limited access to representation currently at the inquest. He clearly does not want to open the floodgates to every coroner’s court hearing, with lots of lawyers being unnecessarily present.

David Kidney (Labour, Stafford)

Would you be willing to consider an amendment that widened the present discretion that the Legal Services Commission has to grant legal aid to people with good reason for representation at an inquest?

David Kidney (Labour, Stafford)

That is a helpful answer. My last point is about resources. On Second Reading, I mentioned the rule 43 reports that coroners can make now to draw attention to ways in which we might prevent similar deaths in the future. That is continued in schedule 4, but Liberty says that at the moment it is a weedy proposition—there is a report, but nothing seems to happen as a result of it and no one takes any notice. Do you agree that there should be some strengthening of the procedure to highlight the fact that the coroners have made these recommendations and that someone, somewhere should do something about it?

David Kidney (Labour, Stafford)

Again, that is helpful, thank you.

Jennifer Willott (Liberal Democrat, Cardiff Central)

I want to return briefly to the issue of resourcing and pick up on the issues that Mr. Kidney just raised. There seems to be potential for a problem between lack of local resourcing and the implementation of national standards. Are there any proposals to do things such as lay down more prescriptive minimums for local authorities, taking account of the funding already available, when doling out the money that the Minister has mentioned in respect of the central subsidy to run services? Some areas have problems with a lack of resources. Higher standards are obviously to be welcomed, but what can be done to guarantee that?

Jennifer Willott (Liberal Democrat, Cardiff Central)

How does that relate to the introduction of the proposed medical examiner system? It seems to me that it has been widely welcomed, but it will build in some of the problems in the coroners system. It will be locally funded but centrally monitored. We already have local authorities and police authorities providing support and resourcing to coroners. The ME provision will be resourced by local health boards in Wales and primary care trusts in England. There seems to be quite a lot of potential for nobody to fund it properly, for everybody to think that someone else will put in the resources and for us to end up with a gap. What can be done to ensure that that does not happen?

Jennifer Willott (Liberal Democrat, Cardiff Central)

One thing that appears to have happened in the past 10 years or so is that the number of inquests seems to have increased by more than 40 per cent., so clearly reform is needed.

I suspect that the answer to my next question is, “It will be given to the chief coroner.” Improved standards and higher quality expectations are laid out in the Bill. Will there be any way to ensure that the standards will be met, if the number of inquests rises further? Will there be regulations concerning the number of coroners, or will additional resourcing be tied somehow to ensure that quality continues rather than dropping, if the number of inquests increases?

Jennifer Willott (Liberal Democrat, Cardiff Central)

My final question is about the posts of chief coroner and deputy chief coroner. Why does the Bill make it clear that coroners will not be able to apply for those posts, and that they will have to be filled by High Court judges? It suggests that there is a question about the ability of coroners, but that is unfair. The Coroners Society has flagged up a concern that the expertise coroners build up would be lacking from the central oversight.

Tim Boswell (Conservative, Daventry)

Briefly, Minister, I have three quick questions. First, in carrying out investigations, the chief coroner will presumably have the right either to do so privately or to make conclusions public. You talked about transparency earlier, but I imagine that there might also be cases whereby a coroner’s competence to continue, whether because of medical illness or otherwise, was raised. There might need to be discrete inquiries and a retirement might take place. I presume that the default mode will be a public investigation and a conclusion on the record both for you, as Minister, and for us, as the general public.

Tim Boswell (Conservative, Daventry)

Secondly, on resourcing, you will be familiar with the discussions about military inquests and the strain on the coroners involved. That may not be the only case in which a particular need arises, however. For example, there could be a rash of industrial-induced deaths, from mesothelioma or whatever, and it might concentrate in a cluster. Would it be for the chief coroner to make public recommendations to you, and, ultimately, for you to resource that spike in the workload in a coroner’s area?

Tim Boswell (Conservative, Daventry)

That is really helpful and leads on to my final question. Within the terms of the Bill, can you confirm whether what might be termed the transfer of cases will be easier? That is in relation partly—and I hope primarily—to the wishes and convenience of the next of kin. I presume that it will be part of the chief coroner’s remit to look at the distribution of resources. In a hypothetical situation, if a coroner in an adjacent county was relatively idle—in Oxfordshire vis-à -vis my own county of Northamptonshire, for example, or Wiltshire—could the case be transferred? At the moment, my experience has been that coroners are, perhaps justly, jealous and proud of their own jurisdictions. Perhaps it will be easier in the future to move things around.

Tim Boswell (Conservative, Daventry)

Will the chief coroner broker that, so that representations can be made if the family or the local authority do not want that?

Henry Bellingham (Conservative, North West Norfolk)

Briefly, I want to ask the Minister about clauses 11 and 12. This is the most controversial section of this part of the Bill and we will debate it at length in Committee. Existing powers are in place to prevent the disclosure of harmful material: there are public interest immunity certificates, reporting restrictions and so on, and we are talking about only very few inquests where this will apply. Do Ministers—Mrs. Prentice, in particular—feel that damage will be done to the credibility of the coronial service if these clauses become sections in the new Act? Does she feel that the damage done will be worth it for the benefits that accrue? We are talking about so few inquests, and powers are there already to prevent harmful material from being made available.

Frank Cook (Labour, Stockton North)

Mr Howarth, as the last inquisitor on this section, may I ask that once you have spent your rounds on this particular target, you adjust your sights and concentrate on the section on sentencing?

George Howarth (Labour, Knowsley North and Sefton East)

I will try to comply with that target-shooting analogy, Mr. Cook. I have a brief point on the coroners provisions. I have read them and the notes on clauses. On Second Reading, I highlighted the difficulties that bereaved families experienced in the Hillsborough inquest. It is not clear to me how the reforms will apply in a case where, for example, instead of there being an inquest about one particular death, there is a series of mini-inquests about deaths that took place within a wider disaster. I suspect that asking the Minister to speculate on how that will work would be asking rather too much. She may not be able to do that. Will she consider preparing a memorandum on how she sees the reforms working in that sort of case?

David Howarth (Liberal Democrat, Cambridge)

If I may interrupt, I am not talking about the conduct of coroners, but about the process.

George Howarth (Labour, Knowsley North and Sefton East)

I am grateful. I will move on to sentencing as you requested, Mr. Cook. I have three, hopefully, quick points. I should declare an interest in that I sat on the Gage working party, which considered the Carter report that led to some of these provisions.

First, there has been speculation about the role of the Lord Chief Justice in the new enhanced sentencing commission. The Gage working party took the view that it would be asking too much of him to chair the commission. However, there must be a role for him. What does the Minister think that role might be?

Secondly, on the balancing of correctional resources with sentencing, on Second Reading the hon. and learned Member for Beaconsfield (Mr. Grieve) said effectively that to try to do that would be to undermine the principles of our criminal justice system. I think that he misunderstood slightly what is being proposed. Will the Minister say how there can be judicial independence while forecasting what correctional resources are necessary to deal with the totality of sentencing over a given period?

Finally, will the Minister comment on any role that Parliament might have in dealing with sentencing guidelines that come from the new enhanced sentencing commission?

David Howarth (Liberal Democrat, Cambridge)

Too kind.

Edward Garnier (Conservative, Harborough)

I, too, must declare an interest. If this Bill becomes an Act, as a sentencer, I shall have to comply with the Sentencing Guidelines Council’s directions. Can you give us an example of how the point about correctional resources will affect a particular sentence? Sitting as a sentencer, will the judge or magistrate look at guidance and read, “The guideline sentence for such and such a crime is x number of years”, with an addition reading, “but we are a bit short of prison places this week”? Can you explain it in practical terms?

Edward Garnier (Conservative, Harborough)

What is the practical difference? Apart from the duty to follow, which is new, what is the real difference between what is currently in place and what is proposed?

Edward Garnier (Conservative, Harborough)

Will that information be for the use of Ministers and public policy makers, or for the use of sentencers? What is the point of collecting the information if it is not to influence sentencers?

Edward Garnier (Conservative, Harborough)

Is not the more intellectually honest position to take this: we—the Ministry of Justice—will collect this information, and based on that information, we will advise judges to alter their sentences according to the resources that are available in any particular aspect of the correctional system?

Edward Garnier (Conservative, Harborough)

Will you not be placing on the judiciary an additional factor? Beyond the facts of the case, judges will also be influenced by the information that is pouring down from the Ministry of Justice, which will have been drawn up by the information-gathering system that you have just been talking about, otherwise there is no point in it.

Edward Garnier (Conservative, Harborough)

But clause 107(1)(a) says that every court must “follow any sentencing guidelines.” Those sentencing guidelines will be informed by the resource information that someone has gathered.

Frank Cook (Labour, Stockton North)

Mr. Garnier, you pose the questions and then express dissatisfaction with the answers.

Edward Garnier (Conservative, Harborough)

I am just testing the answers with further questions.

Frank Cook (Labour, Stockton North)

Just a moment, we can always test them in Divisions at a later date. I am afraid that you must live with your dissatisfaction for the time being.

Alun Michael (Labour, Cardiff South and Penarth)

I want to raise three points. Again, I am conscious that our time is limited, so if you want to give a headline and expand afterwards, I will be happy with that.

First, in the information that you have given to the Committee on the assessment of the impact of the Bill, I was rather concerned to see, in the reference to the sentencing council, a lot of emphasis on closer adherence to sentencing ranges. As a member of the Justice Committee—you are right to think that that Committee could be of great assistance to Ministers and officials if that opportunity is taken—I ask whether it is not in the interests of effectiveness to reduce reoffending? It is the effectiveness of sentencing that should be emphasised rather than narrowing ranges. That seems to go against what you have been saying to us.

Alun Michael (Labour, Cardiff South and Penarth)

I would be a lot happier if that were visible in what the Department is saying about the intentions. I support the idea of the sentencing council. Clearly, the use of data to ensure that sentencing is effective is the whole point. Again, we have a majority of judges, to which we have already referred. I cannot say that that reassured me. In fact, it had the opposite effect. We need people who will be critically examining the evidence on what works within the sentencing system. In a recent Justice Committee, we heard from the previous Lord Chief Justice about the lack of confidence of judges in community sentences. We have also heard about some recent research on the lack of knowledge of community sentencing. That might explain why we have a lot of ineffective sentencing.

Alun Michael (Labour, Cardiff South and Penarth)

But it will not happen by osmosis, will it? It will not happen by inputting data that is looked at by a group largely consisting of judges. It needs to be clinical.

Alun Michael (Labour, Cardiff South and Penarth)

That brings me to the other point. How are we going to make sure, given that it is only a minority of members who will provide that clinical examination of what works, that those appointments will be given to questioning, evidence-based individuals who provide that necessary challenge?

Alun Michael (Labour, Cardiff South and Penarth)

And there will be the resources to do so?

Frank Cook (Labour, Stockton North)

Mr. Howarth, I think that Alun Michael shot your fox. We shall now move on to death certification.

Brian Iddon (Labour, Bolton South East)

I want to refer to clause 19. I welcome the attempts to improve the accuracy of death certification, particularly with regard to after-use of death certificates. My hon. Friend will know that epidemiologists are interested in death certificates, but my greater interest is in the misuse of drugs and, indeed, in those that cause death.

An important publication from St. George’s hospital is produced by gathering coroners’ information. It is on drug-related deaths as reported by coroners in England and Wales. I have had discussions with Hamid Ghodse, who is one of the compilers of that information, and he sometimes makes the criticism that death certificates do not always mention the drugs that people were using when they died. Therefore my question to the Minister is whether any consideration has been given to making sure that the medical examiner and even the death certificate has proper and accurate information with respect to the drugs that the person was on before death?

Brian Iddon (Labour, Bolton South East)

I think that I am flagging up a point of discussion in Committee.

David Howarth (Liberal Democrat, Cambridge)

The question on data sharing is not whether it is always a good or bad thing because obviously it is sometimes both; the question is why the provisions of the Bill are drawn so broadly? Why are they drawn up to allow any person to share any data on the basis of any Government policy, regardless of what any enactment says, apart from the Regulation of Investigatory Powers Act 2000? Why does the Bill allow data sharing to include using data for purposes entirely different from those for which the data was originally handed over? That is not information sharing; it is something quite different. The Bill allows the organisation that originally collected the data, without any other organisation being involved, to be authorised to use the information for another purpose. Surely that is all far too broad.

David Howarth (Liberal Democrat, Cambridge)

The Thomas and Walport report said that there should be a fast-track process for allowing data sharing, but only in specific circumstances. The trouble with the Bill is that it is not specific at all; it is enormously broad. They also said that they did not think that the fast track should be allowed to facilitate big changes in Government policy, such as getting rid of the existing safeguards on the data collected for the purposes of identity cards and so on—DNA or medical records. There is no such safeguard in the Bill. It seems to me that the Thomas and Walport report has been taken as a starting point, but the Bill goes way beyond that.

David Howarth (Liberal Democrat, Cambridge)

But the circumstances—the pursuance of any Government policy—are not specific. Obviously, the Government do not have to tell anybody what their policies are; in fact they could act in pursuance of some new policy that they have just made up.

David Howarth (Liberal Democrat, Cambridge)

You do not have to.

David Howarth (Liberal Democrat, Cambridge)

What about sharing information with private sector organisations, which are not covered by human rights legislation, for example? Surely that goes too far. If that is to be done, it should be done by primary legislation or nothing.

Alun Michael (Labour, Cardiff South and Penarth)

Briefly, there are some constructive suggestions made by the Information Commissioner in a note to the Committee, particularly in relation to linking the data-sharing code of practice explicitly to the information-sharing orders. Given that simplicity and getting the balance right is the challenge with all of this, will she take those points on board and consider the other points in his memorandum?

Frank Cook (Labour, Stockton North)

We have come to the end of the time allotted for the Committee to ask questions of these witnesses. Thank you very much for your attendance. Please could the next witness take the “Mastermind” seat.

Frank Cook (Labour, Stockton North)

Professor Jeremy Horder, may I welcome you to our consultations this morning? Professor Horder is from the Law Commission, so he has a lot to answer for and I am sure he is keen to set about answering.

Edward Garnier (Conservative, Harborough)

I do not think Professor Horder has anything to answer for.

Frank Cook (Labour, Stockton North)

From you?

Edward Garnier (Conservative, Harborough)

In relation to what is to be found in the Bill.

I wonder whether I could ask you, Professor Horder, to concentrate on part 2, chapter 1, which deals with murder, infanticide and suicide—it is the part of the Bill with which you would be particularly concerned. I mean this in both senses of the word—concerned with and concerned about.

I will not read into the record all that you have said in your memorandum but I wonder if you could give us a brief outline of your worries about the shape of the provisions in this section of the Bill. You have some quite fundamental concerns, I think, about the way the Bill is currently drafted.

Edward Garnier (Conservative, Harborough)

Is there another way of dealing with that? If you look at amendment 2, you will see that it states:

“Clause 41, page 25, line 18 after ‘adduced’”.

I make no claims for originality—and you must not accept the blame for this—but I drew that from your submission. Do you think that that amendment would assist in making this Bill marginally better?

Edward Garnier (Conservative, Harborough)

I know that we are short of time and I do not want to be unfaithful to your written submission, which we have. Perhaps I can move you on to the slow-burn issue, where we deal with the proximity point about whether the loss of self-control has been aroused. I ask you to look at clause 42(3) which says:

“This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.”

No time scale is put there, and I wonder, considering amendment 3, whether you think that that is a sensible way forward to limiting the ambit?

Edward Garnier (Conservative, Harborough)

You also have some concerns about the sexual infidelity issue referred to in clause 42(6)(c).

George Howarth (Labour, Knowsley North and Sefton East)

Where does intoxication fit in with loss of control?

David Howarth (Liberal Democrat, Cambridge)

I have two questions. My first is on loss of self-control and the nature of it, which has never been defined. If loss of self-control is quite an easy test to fulfil, how will the clause as drafted lead to 10 to 20 more convictions for murder a year, which is what the Government claim it will do? Where would those extra convictions for murder, as opposed to manslaughter, come from?

David Howarth (Liberal Democrat, Cambridge)

What you are saying would be achieved simply by subsections (5) and (6) of clause 41, or subsection (6) as you would redraft it, because that would take the ridiculous cases away from the jury and there would be no need to do anything at all.

David Howarth (Liberal Democrat, Cambridge)

No, I am talking about the effect that you mentioned.

David Howarth (Liberal Democrat, Cambridge)

That would reduce the number of murder convictions rather than increase it.

David Howarth (Liberal Democrat, Cambridge)

That was the first point. The second point is about the meaning of clause 42(4)(b). It sets out the defence, whereby the thing

“caused D to have a justifiable sense of being seriously wronged”.

How do you think that will be interpreted—especially “justifiable” and “seriously”? Are they questions for the jury, for the defendant—that the defendant thought it justified and serious—or for the judge, whereby he could take the case away from the jury on the point that he thought that the proposal could not be justified or count as being serious?

Frank Cook (Labour, Stockton North)

In the limited time available, I want to move on to assisted suicide.

Brian Iddon (Labour, Bolton South East)

On clause 46, do you know the Government’s motives for rewriting the language? In the words of the explanatory notes, it is to “modernise the language”, but do you agree that the clause simply restates the existing law and does not change it?

Brian Iddon (Labour, Bolton South East)

In your estimation, would that not lead to an increase in prosecutions?

Brian Iddon (Labour, Bolton South East)

Young people—teenagers in particular—often write poetry, song lyrics and other material that has a feeling of death or helplessness about it, and post it on a website. Other young people have access to those postings and might be encouraged to attempt suicide. Would the poster of such information be liable to prosecution under clause 46?

Brian Iddon (Labour, Bolton South East)

That kind of freedom of expression is, in your opinion, protected under the law.

Edward Garnier (Conservative, Harborough)

I take on board all that you say about proposed new subsection (1)(b)—the express requirement to prove intent to encourage or assist—but do you think that the use of “capable of encouraging or assisting” in proposed new subsection (1)(a) and elsewhere below is apt to assist? Is it not adding a layer of froth or blancmange? Why do we not just say, “does an act that encourages or assists”, rather than use the words, “capable of”? The judge will make a decision about whether the evidence is capable of proving the particular element of the offence, and it will be for the jury to decide whether it does so in fact, but we see “capable of encouraging” and “capable of encouraging or assisting” throughout this set of clauses on suicide.

Edward Garnier (Conservative, Harborough)

The problem relates to the city of Derby. The superintendent of the Derbyshire police force said that Derby lost its humanity on that day. Whether or not that is a sensible thing for him to have said is neither here nor there. However, there could be an issue, surely, in a case like that—if you happened to light upon one, two or three of the individuals in the crowd and brought them to court and prosecuted them under this provision—about whether they actually intended something or whether they were just mouthing off and about whether they had the requisite intent to encourage or assist.

Edward Garnier (Conservative, Harborough)

Surely, the better question to ask in that circumstance is, “Did what they shouted encourage or assist?” Of course, one can only do that by inference, because one does not know what is inside the dead person’s mind.

Edward Garnier (Conservative, Harborough)

It matters a lot to the two individuals who might be prosecuted—one without the intent and one with the intent—and, of course, the prosecution—

Edward Garnier (Conservative, Harborough)

Surely you are going through the same intellectual hoops as you would under section 2 of the Suicide Act 1961, but just adding complications. Everyone who needs to know knows what section 2 of that Act means and how it can be explained to the jury, do they not?

Edward Garnier (Conservative, Harborough)

I have only got two minutes.

David Howarth (Liberal Democrat, Cambridge)

Can I move you on to 2A, which deals with the further rules on acts capable of encouraging or assisting? What is the thinking behind 2A(2), which says that

“Where the facts are such that an act is not capable of encouraging suicide, for the purposes of the act it is treated as encouraging suicide if the facts had been as the defendant believed them to be at the time of the act”?

Is that not going back to the days of impossible attempts?

David Howarth (Liberal Democrat, Cambridge)

No, we do not. But similar questions arise. What if you believe that you could do it by thought transference or witchcraft?

David Howarth (Liberal Democrat, Cambridge)

I am asking you.

Frank Cook (Labour, Stockton North)

Do Members have any further questions for Professor Horder? That brings us to the end of our business for the day.

Roger Gale (Conservative, North Thanet)

On behalf of the Committee, I welcome the witnesses for this afternoon’s first evidence session. They are André Rebello, honorary secretary of the Coroners Society of England and Wales; Deborah Coles and Helen Shaw, co-directors of Inquest; Alison Cox, chief executive of Cardiac Risk in the Young; and Professor Peter Furness, president of the Royal College of Pathologists. Thank you all for joining us.

Henry Bellingham (Conservative, North West Norfolk)

I have four quick questions regarding appointments and directed mainly at André Rebello and the Coroners’ Society. First, does the Coroners’ Society feel that the posts of senior, area and assistant coroner should remain freehold? Secondly, does it concern you that the Bill makes provision for the area and assistant coroners to be appointed by the local authority, rather than by the senior coroner? For example, if a local authority had an agenda because it did not have much confidence in the senior coroner, could not there be potential problems of conflict if it decided that it wanted to put its stamp on the appointment of the area and assistant coroners?

Thirdly, do you feel that it is right that medically qualified professionals will be precluded from applying for those posts? Fourthly, does it concern you that senior coroners, who effectively are very experienced members of the judiciary, will be precluded from applying for the post of deputy chief coroner, as those are all based on appointment? Those questions run together.

Roger Gale (Conservative, North Thanet)

Mr. Rebello, I ask you to respond to those questions first, then the other witnesses may indicate if they wish to come in afterwards.

Roger Gale (Conservative, North Thanet)

Would anyone else on the panel like to come in on those specific questions?

Tim Boswell (Conservative, Daventry)

My first question, Mr. Rebello, is, do you envisage that the chief coroner or somebody else will mediate or adjudicate, as it were, if a dispute arises between a local authority and its coroner?

Tim Boswell (Conservative, Daventry)

Does that remark also bind on the function of the coroner’s office in trying to get a degree of consistency in practice? Is that also a concern of yours?

Tim Boswell (Conservative, Daventry)

You may wish to comment on that, Mr. Rebello.

Tim Boswell (Conservative, Daventry)

Before I finish, I will make two quick points about your evidence, Mr. Rebello. First, you talked about having some sense of natural justice when you were discussing whether doctors could discharge the quasi-legal—

Tim Boswell (Conservative, Daventry)

Is that not also true of rules of evidence?

Tim Boswell (Conservative, Daventry)

I have a blank on whether my final point is referred to in the papers. Do you have any strong views that you wish to share on the age of retirement of coroners?

Roger Gale (Conservative, North Thanet)

You had the opportunity to do some lobbying and you have done it.

I should have said this at the beginning, so, before we move on, I remind hon. Members and witnesses that we are bound by the internal knives that the Committee agreed under Mr. Cook’s chairmanship this morning. That means that this evidence session must finish at 5.30 pm, the second at 6.15 pm and the third at 6.55 pm, because there will be a vote in the House at 7 pm. I hope that I do not have to interrupt anybody mid-sentence, but if I have to I will.

Jennifer Willott (Liberal Democrat, Cardiff Central)

To follow on from Mr. Boswell’s questions, and before going on to the next subject, I have a couple of questions about resourcing.

Mr. Rebello, you were talking about what could be done to ensure proper resourcing for local coroners. What would you like to see introduced? You talked about judicial review, which is clearly not an ideal scenario. What would you like to see in the Bill that you think would get around that?

Jennifer Willott (Liberal Democrat, Cardiff Central)

As precise as that?

Jennifer Willott (Liberal Democrat, Cardiff Central)

If that were not to happen, do you think that some dispute resolution mechanism should be introduced? At the moment, coroners are pretty much left to argue with their local authorities, are they not?

Jennifer Willott (Liberal Democrat, Cardiff Central)

Is that official?

Jennifer Willott (Liberal Democrat, Cardiff Central)

I have a couple of questions about the issue of certified inquests, or secret inquests. I wonder if anyone on the panel can give us any examples of “real harm”, as the wording is in the Bill, that has been done to the public interest by holding an inquest in public, or if there are any examples that anyone can give of inquests that were unable to reach a satisfactory conclusion as a result of information that could not be made public.

Jennifer Willott (Liberal Democrat, Cardiff Central)

Yes. The Bill says that one of the reasons that an inquest could be held in secret would be on the grounds of

“real harm to the public interest”.

Can the panel think of any examples of that?

Jennifer Willott (Liberal Democrat, Cardiff Central)

My final question is about the role of families in secret inquests. Are you happy with the provisions in the Bill for the protection of families and their involvement in certified inquests? Are you reassured by what the Government said, or do you have concerns about the impact of certified inquests on the families involved?

Ian Lucas (Labour, Wrexham)

If we can turn briefly to resources. When I dealt with coroners’ inquests in my somewhat distant and limited previous role as a solicitor, they tended to be held in magistrates courts—that is the way it is set in my mind. Looking at the circumstances for witnesses, for example, is there a variation in the venues? If there is, what kind of venues are used for coroners’ inquests?

Madeleine Moon (Labour, Bridgend)

Do you think it would be appropriate for a chief coroner to have powers to request or require additional resources and facilities where perhaps there needs to be a greater in-depth investigation, perhaps where there has been a cluster of deaths, so that further examination can take place—I am thinking in particular of my own constituency where we had a cluster of deaths by suicide—so that the families could have a better understanding of why those deaths took place, that could inform local services, that could give some satisfaction to families as to why people have died but also do some work to help prevent future deaths? Should that be a nationally or locally based study?

Madeleine Moon (Labour, Bridgend)

On the system that is in use in Australia, two studies, coming out of Manchester and Oxford, have dealt with psychological autopsies, where the individual is the focus. So it is not a case of moving away from the individual and their death at all, but of exploring that person’s death much more, to provide an understanding about why the person is dead and to look at the common links. Do you think that it would be appropriate for the psychological autopsy system, which I am particularly interested in, to sit behind the coroners’ system?

George Howarth (Labour, Knowsley North and Sefton East)

I want to ask three questions: one to Deborah Coles, one to Mr. Rebello and one to Alison Cox. First, to Deborah Coles, have I misunderstood or are you mixing up two separate objectives? On the one hand there is an inquiry into the cause of death and on the other an inquiry into the systems themselves. That is what you appeared to be saying a few moments ago.

George Howarth (Labour, Knowsley North and Sefton East)

Thank you. Mr. Rebello, you made the point, and I agree with you, that even in cases where there may have been multiple deaths in one incident, each case is different. Each inquest should be about a different death, even though the overall event may have caused all of the deaths. That is an important distinction to make. There have been exceptions to that. There were a series of mini-inquests into the Hillsborough deaths which meant that they were doing eight per day. Although there was an inquest into each death, it was a shortened version. As the Liverpool coroner you will know that that caused a great deal of anguish, particularly given the insensitivity of the conduct of the coroner in those inquests. Do you think these new arrangements will do anything to improve those sorts of inquest or do you think there is scope for some further improvements for cases where there are multiple deaths arising from one incident?

George Howarth (Labour, Knowsley North and Sefton East)

I am sure he was well intentioned.

George Howarth (Labour, Knowsley North and Sefton East)

I accept that the procedure was unsatisfactory, and I attended a day at those proceedings—

George Howarth (Labour, Knowsley North and Sefton East)

I still think that you have not addressed the particular issue of the appropriateness of the way it was conducted. The Taylor inquiry had already concluded that the cause of the disaster was inadequate policing, yet undue attention was paid to the alcohol intake in each individual inquest. Given that the cause of the accident was already known, that was largely irrelevant. It is as much about the perception of the coroner in those circumstances as about the procedure itself.

George Howarth (Labour, Knowsley North and Sefton East)

All the legal aid in the world would not resolve the problem that if a coroner starts with a particular prejudice in his or her mind, it will affect the conduct of the case.

George Howarth (Labour, Knowsley North and Sefton East)

I have a quick point to put to Alison Cox. From your point of view, are there any improvements that ought to be made to these provisions? If that is a rather big question to answer today, you may by all means submit a memorandum.

Henry Bellingham (Conservative, North West Norfolk)

I have a quick follow-up question on something that has already been covered. Could paragraph 6(1) of schedule 4 on action to prevent other deaths be improved where it says that

“the coroner may report the matter”

when something is revealed that gives rise to concern? Should it not be an obligation to report the matter to a person who may have the power to take action? Under the schedule, that person must make a written response. What I should like to see is some follow-up, perhaps in the form of a report to Parliament. Perhaps one of the deputy chief coroners could have a specific role in collating such reports and ensuring that there is follow-up and accountability. We have touched on that matter already, but will you elaborate on how that could be improved?

Tim Boswell (Conservative, Daventry)

Would that also cover cases of epidemic or systemic problems? I am thinking of mesothelioma, and not simply cases in which there might be some implied delinquency on the part of anyone.

Tim Boswell (Conservative, Daventry)

Is there a national IT system, or do we need one to enable this information to be collated and shared?

Bridget Prentice (Labour, Lewisham East)

I just want to ask Alison whether there is anything missing in the Bill or in the charter for the bereaved, or does she feel that they cover the issues that concern bereaved families?

Bridget Prentice (Labour, Lewisham East)

Try me.

Roger Gale (Conservative, North Thanet)

I am not inviting lengthy statements, but would any of our witnesses like to make any other observations?

Roger Gale (Conservative, North Thanet)

Absolutely. The fact that you have not been asked a question about it does not mean that you cannot answer it.

Henry Bellingham (Conservative, North West Norfolk)

If you look at clause 19, you will see that the Secretary of State will be able to make a lot of regulations. In fact, throughout chapter 2 there is a lot of talk about regulations that can be made under statutory instruments. Maybe we have a skeleton here, but it needs to be built on substantially.

Jennifer Willott (Liberal Democrat, Cardiff Central)

A lot of the changes to the certification of death and so on have come in the trail of the Shipman case. Are you satisfied that the proposals in the Bill do enough to solve the problems highlighted in that inquiry?

Jennifer Willott (Liberal Democrat, Cardiff Central)

So a similar system to the one proposed for the chief coroner with, as you said earlier, enough power divested in both the chief coroner and the national medical adviser to enforce much clearer national standards.

Tim Boswell (Conservative, Daventry)

Presumably it would help if they were co-located, or at least able to talk to one another from time to time.

Tim Boswell (Conservative, Daventry)

At the national level as well.

Tim Boswell (Conservative, Daventry)

On the certification points, you referred to the quinquennial certification of competence by the GMC as being welcome in general terms, but you emphasised the different weight you gave to the importance of that matter. What I am not clear about is whether you were saying that under the present concept the GMC would look at the person’s competence as a doctor rather than as a registered medical officer dealing with a particular case in connection with coroners, and that the specific expertise would not be examined sufficiently.

Tim Boswell (Conservative, Daventry)

So you need a bag of skills that is precise and that is regularly renewed and testable as being so.

Brian Iddon (Labour, Bolton South East)

May I ask the same witness how much attention he thinks we should give to providing the medical examiner with detailed accounts of what medication—whether legal or controlled drugs—the person was on immediately prior to death, bearing in mind that quite a number of people now purchase their drugs through the internet?

Henry Bellingham (Conservative, North West Norfolk)

That is helpful, if a certificate has already been issued with the cause of death on it. I am talking about having that certificate changed.

Roger Gale (Conservative, North Thanet)

Thank you, Mr. Rebello. You have left the Committee with a certain amount to think about.

Mr. Rebello, Helen Shaw, Deborah Coles, Alison Cox, Professor Furness, thank you all very much indeed for coming and for affording us the benefit of your opinions and your experience. Parliament is indebted to you.

I hope that the buses come along. Have a safe journey home.

Roger Gale (Conservative, North Thanet)

I welcome Anita Coles and Isabella Sankey from Liberty. I invite David Howarth to put the first series of questions to you.

David Howarth (Liberal Democrat, Cambridge)

I want to ask about secret inquests, data protection and the information-sharing orders in the Bill. I invite you to give the Committee your view of clauses 11, 12 and 13 on certifying jurorless inquests.

David Howarth (Liberal Democrat, Cambridge)

On the relationship between the publicity of the inquest, whether the family is allowed in and article 2, are there are any circumstances in which an inquest could be held in camera or, as the Government say, are there extreme circumstances in which it could happen, but you believe that it needs more safeguards or conditions?

David Howarth (Liberal Democrat, Cambridge)

So you are distinguishing between the exclusion of the jury and measures to keep information out of the public domain. Those are two separate issues.

David Howarth (Liberal Democrat, Cambridge)

What about the suggestion that juries could be vetted, as they are in the criminal justice system, for espionage and terrorism trials? That is a possibility under the Attorney-General’s guidelines on jury checking. Could that be applied to the coroner’s court?

David Howarth (Liberal Democrat, Cambridge)

Can I move on to data protection and the information sharing aspects of the Bill? What do you think of those information-sharing aspects? Are they compatible with human rights protection?

Roger Gale (Conservative, North Thanet)

Just before we move on to data protection, are there any other questions relating to the first line of questioning?

Tim Boswell (Conservative, Daventry)

I wonder whether there is an alternative approach to what you say, as I understand it, must include an absolute right to have jurors and the handling of evidence within already set precedents—I think that that would be a summary of where you are. I am relatively fresh to it, but one of my concerns is that the Secretary of State is the certifying authority. Would it be at least a compromise, if not a halfway house, to say that the Secretary of State could not certify, but could apply to a High Court judge to certify that such an inquiry was appropriate? That would be a safeguard, as it were, so that one would not have the potential moral equivocation of the two capacities—the Secretary of State as a member of a Government which might have authorised something which led to a death in custody, for example, and at the same time being able to fix the inquiry so that it would not cause embarrassment to that Government. Could you take the decision process, if the Government think it is essential, out of the hands of Government itself?

Edward Garnier (Conservative, Harborough)

The Secretary of State for Justice, Mr. Straw, and, I believe, Ministers on this Committee, have from time to time batted the matter back to those of us concerned about the principle of these secret inquests, including yourselves, asking what we would suggest; there must be occasions when it is in the national interest, for one reason or another, that certain information that might be relevant to the inquest is not disclosed to the public, and sometimes not even to the families. Do you have a bedrock principled objection to the types of inquest suggested under clause 11, or may there be occasions when some form of inquiry into a death has to be conducted without full public knowledge of what is heard by the tribunal—be that a High Court judge or another form of coroner?

Edward Garnier (Conservative, Harborough)

You were not in the Chamber of the House of Commons this afternoon during Justice questions, but one of the answers that the Secretary of State gave when Opposition Members were putting precisely those points to him went broadly along these lines: with a prosecution, if the Crown wanted to keep something secret and the judge or the criminal court is not amenable to an application for PII or any equivalent, the prosecution has the discretion not to proceed with the prosecution. There is no such discretion with an inquest; the coroners system requires that the death is looked into. Do you think there is anything in that distinction, or do you think the Secretary of State is perhaps not thinking this through carefully enough?

Edward Garnier (Conservative, Harborough)

Have you been able to enter into any direct discussions with officials or Government Ministers about your concerns, other than by kindly supplying the Committee with you written concerns?

Edward Garnier (Conservative, Harborough)

What has their response been to your suggestions?

Edward Garnier (Conservative, Harborough)

But you have not had face-to-face discussions with Ministers or officials.

Edward Garnier (Conservative, Harborough)

You have. And they said that you should wait for the Bill.

Edward Garnier (Conservative, Harborough)

You must be hugely confident that what you are proposing will be included in the Bill.

David Kidney (Labour, Stafford)

Are you saying that if the stakes are extremely high—for example, a person’s life depends on their identity not being disclosed, or a terrorist might learn how to avoid detection if he learns how another person was detected—the inquest should go ahead with a jury, and that the jury would not disclose such information to anyone at the end of the inquest? Or are you saying that there are sufficient safeguards for such information to be kept from the jury? I am not clear on that crucial point.

Madeleine Moon (Labour, Bridgend)

I would like to ask a question about a situation that is not at all politically contentious. If a child dies or a child commits an offence, their identity would be kept confidential in the court proceedings. The media would be excluded from the court and would not be able to report on their identity. Families have told me about being extremely distressed when their child’s death was reported in the media. Do you think there could be a scenario in which families could request that confidentiality in respect of reporting be upheld in a coroner’s hearing in a case where a child has died?

Tim Boswell (Conservative, Daventry)

I am grateful for these exchanges. Given my lay status, could you walk me through the situation that might apply? We know that there is sensitive information, and that there may be individuals whose identity is sensitive and may be more readily protectable, but, of course, the evidence is important. If it is under a public interest immunity certificate, depending on the nature of that certificate, it will not be disclosed to the jury. If that is the case, how can the jury come to a verdict if they have not heard all the evidence? I take it—I am trying to complete my own thought process—that in a criminal case, a judge will have heard that information and will incorporate it into his or her summing up to the jury. In a coroner’s inquiry, there is obviously a slightly different procedure. That would concern me not least because we still have—and the Bill will provide for—vested rights for some non-judicially qualified coroners to continue. Perhaps that would not apply in this special case because it requires the appointment of a High Court judge. Is there a worry that you would not be able to get the information out of protection to whoever was making the decision with regard to the inquest? First, can you confirm that I have more or less understood what is happening, and, secondly, give me your assurance that it could work?

Bridget Prentice (Labour, Lewisham East)

Going back to clauses 11 to 13, I disagree with your description of it being exactly the same as a criminal case. I fundamentally disagree with you that a coroner’s inquest could be treated in exactly the same way and that PII certificates could be used. Given that two inquests are stalled because of sensitive information, are you saying that there is never an occasion when that can happen, or do you accept that there is a problem, but disagree with the way in which we are trying to fix it?

Bridget Prentice (Labour, Lewisham East)

If it were someone other than the Executive who certified, would that satisfy your concerns to some extent?

Stephen Hesford (Labour, Wirral West)

Diplock courts in Northern Ireland have a judge sitting alone. Is it your view that, essentially, all the verdicts of those courts were, first, unsatisfactory and, secondly, basically unlawful?

Stephen Hesford (Labour, Wirral West)

Yes or no?

Ian Lucas (Labour, Wrexham)

For the sake of clarity, are you saying that, if the Executive made an application to a judge and the judge decided whether or not there would be a jury in the case, you think that would be in breach of article 2?

Ian Lucas (Labour, Wrexham)

Sorry, I am still not clear. Are you saying that an application by the Executive to a judge, who would then make the decision, would be in breach of article 2?

Tim Boswell (Conservative, Daventry)

For the record, although I may well be sympathetic to your concerns I think that I am right in saying that article 2 is silent on whether or not there should be a jury.

Edward Garnier (Conservative, Harborough)

Do you agree that what Mr. Lucas was putting to you was, although not satisfactory, marginally less satisfactory than what is in the Bill?

Edward Garnier (Conservative, Harborough)

You are quite right. [Interruption.] I am glad to see that everybody is listening, even the Minister. You are right. It would be unsatisfactory, or—

Edward Garnier (Conservative, Harborough)

Yes. So, if we get halfway there, you will be half-happy but not wholly happy.

Roger Gale (Conservative, North Thanet)

Are there any further questions on this line of questioning, before we move to the issue of data protection?

David Howarth (Liberal Democrat, Cambridge)

I simply ask for the views of Liberty on the provisions in the Bill that relate to the information-sharing order.

Roger Gale (Conservative, North Thanet)

I am sorry. Can I ask you to move up to the microphone? It is awfully difficult for the Hansard reporter if you do not move up to the microphone.

David Howarth (Liberal Democrat, Cambridge)

The definition of information sharing includes entirely changing the purpose for which the data were collected.

David Howarth (Liberal Democrat, Cambridge)

The Thomas and Walport report said that there was an argument, which they have accepted, for a fast-track way of allowing data sharing in some circumstances. Do you think that what is in the Bill can be cured by being tightened up or do you think that it is inherently bad?

Henry Bellingham (Conservative, North West Norfolk)

Following that last question, we tend to understand why the Government want to bring in clause 151, which does not contain a great deal that we have problems with. Clause 152 is extremely wide-ranging and is going to lead to a great deal of power being given from the private sector to the public sector and vice versa. Following on from Mr. Howarth’s question, clause 152 is long and it would be my instinct to try to strike it out completely, but is there any way, short of that, that it could be improved? Could it be amended in any way? One of the problems to which Mr. Howarth alluded is that it will trigger quite a few opportunities for statutory instruments, which cannot be amended. Is there any way in which the clause as it stands could be improved? Would it be your intention to suggest amendments to it, or do you take the view that it is totally beyond the pale and needs to be struck out completely?

Henry Bellingham (Conservative, North West Norfolk)

How would you improve it if that is your fall-back position?

Henry Bellingham (Conservative, North West Norfolk)

To be fair to the Government, we have agreed with them that, with regard to some categories of data, sharing is beneficial, and our lives and the lives of our constituents could be made better, safer, healthier and so on through the sharing of information. It is a question of how you isolate those examples and separate them from a mischief that could be caused by other data being shared.

Tim Boswell (Conservative, Daventry)

I wonder whether I can take this to the practical level and be clear. You have explained your objections in principle. Do you also anticipate that there may be damage or difficulty in practice if these clauses are accepted? If so, could you give us some examples?

Tim Boswell (Conservative, Daventry)

A subset of concerns exists on that matter. While matters are within the public sector, there are certain obligations over and above the Data Protection Act in terms of confidentiality. At one level there is the Official Secrets Act. There are certain criminal procedures in the Taxes Act about the disclosure of people’s personal files. Is there a danger that as this material is available to people within the private sector under the data-sharing order, the controls that are built into legislation would be attenuated? That is point one. Point two is that if the information were further disseminated within the private sector, perhaps improperly or outside the terms of the order, it would leak out widely and become public knowledge.

The rest of the debate is in Hansard.