115. In our first Report on this Bill we drew the attention of both Houses to the serious human rights implications of the provisions in the Bill concerning coroners' inquests involving material affecting national security. We pointed out that the provisions have the most serious implications for the ability of the UK to comply with the positive obligation implicit in the right to life in Article 2 ECHR, to provide an adequate and effective investigation where an individual has been killed as a result of the use of force, particularly where the death is the result of the use of force by state agents.

116. The Government in its Reply to that Report dismissed our concerns as "misplaced". The Government's argument is that the provisions in question, which would allow the Secretary of State to certify that an inquest should be held without a jury and by a coroner specially appointed by the Secretary of State, are in fact facilitative of independent coroners' inquests and would overcome a potential incompatibility with Article 2 under the present law where there exists material that is, or could be, central to an inquest, but which cannot be disclosed publicly because of the damage it would cause to the public interest. A "specially appointed coroner", the Government argues, will still be a coroner holding judicial office and so will be entirely independent of the Government as required by Article 2.

117. In our view, the Government's justification for this measure, that the current law may be incompatible with Article 2 ECHR in this respect, is highly questionable. The law of public interest immunity applies to inquests and already provides the Government with the opportunity to persuade the coroner not to disclose certain documents or information because to do so would damage the public interest, including national security.

118. The Strasbourg case-law on Article 2 ECHR acknowledges that such restrictions on disclosure at inquests is in principle compatible with Article 2. In both McCann v UK and Jordan v UK, for example, which are two of the main cases in which the European Court of Human Rights spells out the requirements of the procedural obligation in Article 2 to provide an effective investigation, the Court rejected complaints about the use of public interest immunity certificates at the coroners' inquests to prevent disclosure of certain categories of information on grounds of national security. In both cases, the Court found no indication that these PII certificates had prevented examination of any circumstances relevant to the death.[53]

119. In any event, even if the Government were correct that there is a risk of incompatibility with Article 2 under the law as it stands, the proposed solution of specially appointed, security-cleared coroners would, in our view, clearly not be compatible with Article 2. In any case where the State is potentially implicated in the death which is being investigated, a coroner appointed by the Secretary of State, instead of by the normal method, would not satisfy the requirement in Article 2 ECHR that the investigation be carried out by a person independent from those implicated in the events. The fact that the coroner has been directly appointed by the Secretary of State for the purposes of the particular inquest would be fatal to any appearance of independence.

120. We therefore recommend that the clauses concerning coroners' inquests be deleted from the Bill and the issue returned to in the context of the forthcoming Coroners Bill. We suggest the following amendments:

Para 44, line 35, leave out clause 64.

Para 46, line 1, leave out clause 65.