The Secretary of State for Justice, Jack Straw, made a written statement in the House of Commons last Friday explaining that the Government will withdraw Clause 11 of the Coroners and Justice Bill that would have conferred power on the Secretary of State to dispense with a jury in an inquest. There is little pleasure in kicking a clause when it is down but the sorry saga of Clause 11 deserves to be recorded in the hope that the Government will learn some lessons about how not to proceed when it makes legislative proposals in relation to the judicial process.

Inquests into particular categories of death are held with a jury to maintain public confidence in the exercise of state power. For example, if there is reason to suspect that the deceased died while in custody or otherwise in state detention or as a result of the act or omission of a police officer.

In 2008 the Counter-Terrorism Bill contained provisions allowing ministers to dispense with juries where sensitive information is involved. Those proposals were introduced without prior consultation. The Constitution Committee of the House of Lords criticised the proposals as “constitutionally inappropriate” because ministers, and not judges, would have been given the power to decide how an inquest should be conducted. The Parliamentary Joint Committee on Human Rights criticised the Secretary of State’s failure to explain how the provision was consistent with Article 2 of the European Convention on Human Rights on the right to life. The Government withdrew the proposals.

The Coroners and Justice Bill was then introduced containing very similar provisions. Again there was no prior consultation. The Joint Committee on Human Rights concluded that the proposals were unnecessary. Clause 11 received a hostile response from all directions. This column summarised the objections on January 29.

The Secretary of State tabled amendments to clause 11 during the report stage in the House of Commons. Those amendments were inadequate to deal with fundamental defects, as the organisations Inquest, Liberty and Justice explained in a joint briefing. Anyone who reads that valuable document will be puzzled that the Secretary of State still insisted, as he clung to the wreckage of Clause 11 last Friday, that the clause “struck a fair and proportionate balance” between competing interests.

The Government needs to learn from an episode that should cause it deep embarrassment. It needs to consult before it comes forward with legislative proposals on sensitive issues relating to the judicial process. It should listen more carefully to what other people say in order that legislative proposals are coherent and principled.

Of even greater concern is that the Government still does not understand the issues raised by Clause 11. The Secretary of State now says that the Government will consider establishing, in exceptional cases, an inquiry under the Inquiries Act 2005 to ascertain the circumstances of a death where evidence cannot be disclosed to a jury. But those are precisely the cases where the maintenance of public confidence will most require that the evidence is heard by a jury.

The recent inquest into the death of Jean Charles de Menezes, the Brazilian citizen shot by police officers at Stockwell Tube station because of mistaken identity, involved the consideration of highly sensitive evidence concerning the Metropolitan Police’s policies for addressing the threat posed by suicide bombers. A High Court judge sat as the coroner with a jury. To the extent necessary, the coroner made a number of rulings restricting the disclosure of sensitive information through the use of public interest immunity certificates, witness anonymity orders and exclusion of the public. If such measures sufficed in the de Menezes case, why is it necessary to dispense with a jury in any other inquest? If and to the extent that the Regulation of Investigatory Powers Act 2000 prohibits the disclosure of intercept evidence to a coroner’s jury, then the solution is to amend the 2000 Act to allow for such disclosure where a High Court judge, sitting as a coroner, rules that it is necessary and appropriate for the conduct of the inquest.

I mentioned in my earlier article that in the final act of Hamlet, a coroner’s inquest rules that Ophelia’s drowning was not suicide because the water came to her, rather than she coming to the water. The second clown asks the first clown, “But is this law?”. After repeatedly testing the water, the Government has decided that Clause 11 should not be law. Ministers should stop clowning around on the serious subject of inquests.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford and a crossbench peer in the House of Lords

Times Recommends

• BGC 'set aside £40m to lure Tullett brokers'
• Legal aid review to ensure value
• Fears as 21 magistrates' courts face closure