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Even if there were a legally binding sanction to prevent disclosure, there are some individuals for whom the threat of prosecution would not prove a deterrent. Disclosure of intercept capabilities would have a real and damaging impact on our ability to gather intelligence that is vital to national security. The Chilcot review on intercept as evidence recognised this—I hope that helps the hon. Member for Newark (Patrick Mercer), who is often nearly my hon. Friend—and that is why we are taking forward a detailed and extensive programme of work to ensure that we can meet the tests set out in it and allow intercept to be used safely, without putting national security at risk.
Sir Alan Beith (Berwick-upon-Tweed) (LD): As someone who is taking part in that review, may I remind the Minister that disclosure is not the only problem? One of the other problems that the group originally identified is the retention of material. When the Minister tackles the way in which the new legislation can cover the substance of amendment No. 106, he must also consider the group’s work on retaining material to ensure that a burden, which impairs their work, is not to be placed on the agencies.
Mr. Coaker: We look forward to receiving the report from the right hon. Gentleman and his colleagues. Certainly, we will have to consider the retention of material alongside the other points that have been made.
The Chilcot review also recognised that, in criminal proceedings, the ability to choose not to put intercept product into the public domain afforded an important safeguard. I believe that amendment No. 106 is flawed because of the inadequate protection it affords. However, there are other problems, too.
It is unclear how the new clause for which amendment No. 106 provides would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests involving the consideration of such material. There are provisions for a coroner to appoint a deputy coroner who is a High Court judge, should he choose to do so. However, as with other suggestions that have been made for safeguards, too much is left to chance and national security needs must take precedence.
When the amendment was debated in the other place, concern was expressed about the need to allay fears that there is any sort of shoot-to-kill policy. We need to recognise the important role that the Independent Police Complaints Commission plays on those rare occasions when individuals are shot by armed police officers. It has a responsibility to investigate all the facts and make a recommendation to the Crown Prosecution Service about whether an offence has been committed. Its reports are also a crucial source of information to the inquest.
We recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in as much of an inquest as possible. However, it is always necessary to strike a balance between the interests of the families and the public interest when material that is central to the inquest cannot be disclosed publicly.
Mark Fisher: I am sure that the Minister wants to reassure the House. We are only a few months after the Jean Charles de Menezes case, which suggests that such reassurances do not operate in the real world.
Mr. Coaker: Obviously, lessons need to be learned from that case, and we await the full report.
Jeremy Corbyn: I do not understand the point that the Minister is trying to make. Will not the practice that he proposes simply lead to delays in holding a coroner’s court inquest into the death of somebody who died at the hands of, for example, the police? Would not it be better if a case proceeded more rapidly to a coroner’s court? The practice could be perceived as a delaying tactic by the authorities, which would cause even more distress to the victim’s relatives.
Mr. Coaker: We do not believe that it is a delaying tactic. It is a proper route to trying to find out exactly what happened, getting to the facts of the case and trying to learn from them. We do not perceive it as a delaying tactic.
We are confident that the provisions that we intend to introduce in coroner legislation—with the relevant safeguards—strike the right balance of enabling the coroner to consider all the relevant material while protecting sensitive material from public disclosure if that is contrary to the public interest.
Mark Durkan (Foyle) (SDLP): The Minister said that it was important to strike a balance between families and the public interest. Those are fine words, but how do the Government’s provisions strike that balance, when a family can simply be told that it is in the public interest to keep the matter secret? A family in those circumstances will be left suffocating with frustration and there will be no sense of balance. When have the public ever been told what the public interest is?
Mr. Coaker: I understand my hon. Friend’s point and the strength of feeling about the issue. He knows better than the vast majority of us the importance of his comments. I am trying to say that, in a small, limited number of cases, there may be a point at which the sensitivity of the material is such that it simply cannot be used in open session. I hope that that will apply to only a small number of cases, but sometimes the public interest—the interest of national security—requires an inquest to be held without a jury and without others being present.
Mark Fisher: The Minister suggests that we are considering either/or and that there are no fine lines. However, surely proceedings could be taken in camera and reporting restrictions can be imposed. There are gradations of secrecy, short of complete secrecy, that could allow for the recognition of relatives’ grief and frustration.
Mr. Coaker: I do not think that any of us find particularly easy the circumstances to which my hon. Friend the Member for Foyle (Mark Durkan) was referring, or any of the other cases to which hon. Members elsewhere in the House have referred. The issue is an extremely difficult and sensitive one. As a Minister, I feel that the issue is sensitive and requires careful handling, so I can only begin to imagine what it must be like for people in the circumstances described.
I can only begin to imagine how difficult it must be when, as my hon. Friend said, people are then told, “Because of the interests of protecting sensitive material, the proceedings need to be held in secret, but don’t
worry, special people will be there to protect your interests.” Against that, it must be the case that nobody who has stood in my position would be able to say, in any sense of the word “honestly” or with any integrity, that there would never be a circumstance in which it would be not be necessary for material to be protected.
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Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I accept absolutely the distress of the relatives of someone who has been killed or who has died in circumstances that need investigation. However, there is a wider public interest, which is that everyone should be assured that the processes are above board and clear. We all have an interest in an examination of the facts surrounding the death. In arguing the case for national security, the Minister is effectively saying that he is unable to give us any understanding or take us into any confidence as to how conclusions in such cases are reached or whether they are justifiable. That is the dilemma that we all face in this society. Our uncertainties about those who make judgments on these issues make some of us extremely cautious about permitting secrecy of that nature.
Mr. Coaker: That is why we proceed with caution. That is also why we have agreed with the Lords, with respect to those proposals in the Bill that have been removed, to allow for more discussion and consultation. The only point that I make to the hon. Gentleman, and which I made to my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), is that although we would not want such proceedings to take place in many circumstances—in fact, it would be better if they took place in no circumstances—they will be necessary in some circumstances.
Chris Huhne: I would like the Minister’s clarification on one point. My understanding is that the amendment would allow information to be given to a High Court judge sitting as a coroner. It would then be up to that High Court judge to decide who else should be informed about such matters. Is the Minister really saying that High Court judges cannot be entrusted with making a judgment about whether there was a question of national security?
Mr. Coaker: In many cases in which a High Court judge is sitting, he will not be the finder of fact; the jury will be the finder of fact. The judge will need then to share that information with the jury, but in certain circumstances it would not be in the national interest to share it.
Chris Huhne: The judge still has discretion.
Mr. Coaker: My point is that in those circumstances there would be material that may have to be shared with the jury, but which we would not wish to see shared. This is a difficult issue and I appreciate the points that hon. Members have made, but I ask the House to disagree with the Lords amendment.
Damian Green: The Minister’s introductory speech has given us the opportunity for an extremely wide-ranging debate about future legislation, the Chilcot report and a number of the attitudes towards the difficulties surrounding coroners’ courts.
Mr. Coaker: I do not want to interrupt the hon. Gentleman before he is in full flow, but let me say that my remarks were quite deliberately wide ranging. I hope that that was okay with hon. Members, because such matters are extremely important, which is why the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said what he did.
Damian Green: We are all grateful to the Minister for doing that, because it has teased out some wider issues that will be important not just for the Bill before us today, but for future Bills in future Sessions. However, I will concentre on the amendment and the Government’s desire to disagree with it.
The Minister made the point, both about the amendment and more generally, that the Government are seeking to provide a balance between the needs of national security and the needs of the family, the relatives and wider society for an acknowledgement of what has happened when an unexpected death occurs. I was not convinced when the Minister said that that balance was not achieved by the amendment, because Lords amendment No. 106, as it now is, achieves that balance in a rather elegant and practical way. The amendment makes a small change to the Regulation of Investigatory Powers Act 2000 to allow an article 2 compliant inquest to take place when sensitive material exists, but only when a High Court judge sitting as a coroner has determined that the material concerned is central in ascertaining how the person came to die. That is a crucial point, which the House should address.
The Minister talked about the differences between criminal proceedings and proceedings in a coroner’s court. I take the point that they are not identical; nevertheless, I am sure that he would admit that the current situation is deeply unsatisfactory, not just in general terms, which it is, but in specific terms, in that there are inquests that cannot take place properly unless the issue of sensitive material can be addressed.
Mr. Hogg: Would the provisions not be further improved if proposed new subsection (8B) in Lords amendment No. 106, to which my hon. Friend is referring, were amended to the effect that the disclosure would not be injurious to the national interest? Then there would be two tests: first, whether disclosure was essential to the finding of the necessary facts; and, secondly, whether disclosure would be injurious to the national interest.
Damian Green: My right hon. and learned Friend makes a reasonable point. In this case I rather agree with the point that the hon. Member for Eastleigh (Chris Huhne) made. Part of the purpose of the amendment is specifically to ensure that the coroner is a High Court judge. One would hope and expect High Court judges, as a matter of course, to hold the issue of national security dear.
Mr. Hogg: But the problem with the test provided for in the Bill is that the national interest is not addressed.
Damian Green:
No, but the national interest clearly forms part of the background of any decision taken in an area of such sensitive information. In the end, cases will be judged by individual judges. Part of the purpose of the amendment is to ensure that it is not a junior
member of the judiciary taking the decision, but a High Court judge. There comes a point at which we have to trust the individuals who are taking such decisions. Ensuring in legislation that the people taking them are of seniority seems a significant step forward in achieving that.
Further to the individual cases to which I have alluded, the Minister said in his speech that article 2 of the ECHR requires the Government to have proper procedures in place to ensure the accountability of agents of the state and to maintain public confidence. There is clearly a duty on the state to investigate a death in custody with a proper inquiry, but there are cases where it is simply impossible for an inquest to be held that would be compliant with article 2. That is an embarrassing and nonsensical position for any system of justice to get into.
The new clause would permit the disclosure of sensitive RIPA material in a highly structured manner, controlled by a judge, to the family of the deceased, their counsel and the jury at an inquest. I repeat—this is very important—that that will happen only with the proviso that the High Court judge believes that the information contained in the intercepted material is central to finding out how the person died. Clearly, that decision will be for the judge. Any of the other parties would be able to make submissions, but in the end, it would be an exceptional circumstance for the disclosure to take place. It would be a necessity test and any indiscriminate disclosure of intercept material would certainly not be allowed.
I take all the Minister’s points about the need not to compromise the use of intercept material. As he knows, Conservative Members have argued for greater use of intercept material for a long time. However, some of the Minister’s assertions in criticising the amendment today—and, indeed, some advanced by the Minister in the other place—are fairly questionable. We heard in the other place that the provision would allow the wide disclosure of very sensitive material, but that is simply not true. That would not happen unless an individual judge made a catastrophically bad decision—it is barely worth thinking about; it is so unlikely—so we can set aside that canard.
The noble Lord West said in the other place that it was
“unclear how the new clause would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests”.—[ Official Report, House of Lords, 21 October 2008; Vol. 704, c. 1063.]
Under section 14 of the Coroners Act 1988, however, coroners can apply for the jurisdiction of an inquest to go to a circuit or High Court judge, and, indeed, High Court judges have sat as coroners in recent inquests—including, of course, the inquest into the terrible shooting of Jean Charles de Menezes. Lord West concluded with the point that, in discussing material that cannot be disclosed publicly, it is necessary to balance the interests of the family and the public interest. That is exactly right, but that is precisely what the amendment would achieve.
I regret the fact that the Government have set their face against this amendment and are trying to push everything back into a coroners Bill, when presumably
these issues will come back to the House again. As I said, there are urgent cases at present where inquests cannot take place because of this lacuna in the legal system, so I disagree with the Minister and urge the House to agree with the Lords in the said amendment.
Chris Huhne: I am delighted that, following discussions here and in the other place, the Government have seen fit to withdraw their very substantial proposals for changes to the coroners system—to confer on the Secretary of State the ability to halt a coroner’s inquest in mid flow, to replace the coroner and to meet in secret. It seemed to me that those were extremely dangerous proposals; I hope that the Minister will not bring them back in any forthcoming coroners Bill.
It may be easy to forget, but the coronial system has been a bulwark of our freedoms in this country for a very long time. The ability to investigate a death, particularly one at the hands of an agent of the state, has been an absolutely essential guarantee against overweening state power. Many generations have fought against excesses—they have come from the Tudor secret service and beyond—to establish an independent system. It is crucial that it continues to operate independently, which is why I was so pleased that at least parts of the Bill had been removed.
Apart from those remarks, I do not want to open up a wider discussion at this stage, but I want to focus specifically on Lords amendment No. 106, because it deals with a relatively technical point that was overlooked in the Regulation of Investigatory Powers Act 2000.
Jeremy Corbyn: I absolutely agree with the first part of the hon. Gentleman’s contribution, but is he satisfied that the Lords amendment—it is, in a sense, a compromise—will not lead us back into the same danger that both he and I opposed on Report?
Chris Huhne: I do not think it has quite the same problems as the Bill as originally drafted, precisely because the amendment provides for a High Court judge to be appointed as coroner to assess whether evidence should be disclosed. The very fact that the coroner is a High Court judge, with all the independence for which our judiciary is rightly famed, suggests that the key condition is there.
A small lacuna was left in section 8 of RIPA, whereby a High Court judge who in all other circumstances listed in the section can see the material in question and come to a conclusion about it could not do so when sitting as a coroner. Subsequently, that was widely understood as a gap in RIPA. The amendment is designed to include the ability of a judge to sit as a coroner at an inquest to hear the evidence in the same way as he does in all other instances.
We should perhaps remember that at the outset of the Bill the Government impressed on us all how urgent it was to deal with the secret inquest—not as a general issue, but in order to allow a particular inquest to proceed. That was the inquest into the death of Azelle Rodney, who was shot by the police on 5 May 2005. Indeed, the Government wrote to the Rodneys’ solicitors Hickman & Rose on 30 November 2007, promising that they would change the law so that the inquest into the death could resume quickly, as it had been delayed a
year. The urgency arose not least because the state has a legal duty to ensure a prompt investigation into a death in such circumstances. That means holding an inquest as soon as possible.
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