Tuesday 24 July 2012

Another interesting Committee session on JSB in the H of L

One issue which came up yesterday in Committee (4th day so far) was the fear that this clause could be used to bring Coroners' Inquests within the scope of CMPs:

The Secretary of State may by order amend the definition of “relevant civil
proceedings” in section 6(7). 

Well if a Court ever has to decide that question what the Advocate-General said yesterday might be of interest:

The Government's view is that the order-making power could not be used in this way. This is because we believe inquests are sui generis inquisitorial proceedings. While they are clearly not criminal, I believe they are inquisitorial rather than civil proceedings. Unlike civil proceedings with parties who may seek to settle or withdraw at any stage, an inquest must be concluded in order to establish the reason for the death. An inquest is a limited form of public inquiry to determine who the deceased was and when, where and how the eceased came by his or her death. There are no parties, only properly interested persons who are entitled to examine witnesses. We believe there would be necessity for primary legislation if this was to be extended to inquests and by extension to fatal accident inquiries in Scotland.  ...........We do not believe that the order-making power here can be extended by this coalition Government or any future Government to inquests without primary legislation.

Indeed he then went further and offered this amendment:
I said I would be willing to look at words like:
    "for the avoidance of doubt this does not include coroner's courts".

They then went on to look at Norwich Pharmacal, noting that this judgment may have rendered the whole legislative exercise somewhat unnecessary- in its 4th Report, the H of L Constitution Committee states that it believes that legislation is not necessary because:

26.  As we pointed out in our earlier report on this Bill, we know of no PII case in which a court has ordered the disclosure of intelligence secrets contrary to the wishes of a Government minister.[34] This includes Binyam Mohamed, and Omar serves only to underscore the point.[35] For the reasons set out above, the legal position is clear: there is no credible risk that the judiciary of this country would order the disclosure of secret intelligence material, wherever it emanates from.

I think the whole point is that the trust which used to exist between the intelligence and security agencies and the judiciary has somewhat broken down post Binyam Mohamed (although as to whether the judiciary or HMG caused that breach of trust is another matter) and that is why HMG thinks the Bill is necessary - in the end of the day it is for Parliament to lay down the law, not for HMG to rely on the judiciary abiding by some unwritten code that they will not go near national security matters.  

Better for it to be in the BIll rather than hidden away in some unspoken unwritten constitutional assumption....

Lord Norton of Louth sums up the high quality of the debate and its participants here.

That's it for the summer - the House adjourns on Wednesday and is back on 8th October........

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