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Lord Lester of Herne Hill: As far as I am aware—but the Minister will explain this—what they have listened to is the desirability of removing it from the

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Counter-Terrorism Bill. But as I understand it, they are proposing to do exactly the same in another Bill, and that is what I am protesting about now.

Baroness Carnegy of Lour: When the Minister replies, I hope that he will tell me what the position is in Scotland. These clauses apply to England, Wales and Northern Ireland. Of course, the procedures are different in Scotland, but is there no risk of endangering national security there? I hope the Minister can tell me that. Perhaps I should know the answer, but I do not.

Lord Kingsland: I have put my name to the four clause stand part entries on the Marshalled List. I thank the Government for reflecting on this matter and deciding to hold their fire until the coroners Bill begins its journey, as I imagine it will, in the next legislative Session. I share many of the hesitations expressed by the noble Baroness, Lady Miller, and the noble Lord, Lord Lester, about the clauses. I look forward to the opportunity to express my own fears about what the Government want to do if they are foolish enough to go ahead with this matter.

Lord West of Spithead: I thank the noble Lord, Lord Kingsland, for his support and for his kind words. Both this House and the other place have expressed a strong desire to debate the inquest provisions in Part 6, and one got a flavour of that here today. That will now happen in the context of the wider reform of the coronial system; and that is probably the correct way of doing it. Consequently, that is why we are seeking to remove Clauses 77 to 79 and Clause 81 from the Bill and to have that debate when we go forward with the reform of the coroner system. That will provide both Houses with an appropriate context in which to consider all the issues that they are seeking to meet across the totality of the change.

The noble Lord, Lord Lester, mentioned the JCHR points. If the Explanatory Notes are not up to speed in their coverage of some of the issues to do with human rights in Article 2, we will absolutely make sure that happens when it comes up for review in the totality of the coroners Bill. I was not aware that they were so poor; I will look into that to see what the problem was.

The noble Baroness, Lady Carnegy, asked specifically about the position in Scotland, which apparently uses a system of fatal accident inquiries rather than coronial inquests. The noble and learned Lord, Lord Cullen, is currently reviewing the law and the greater use of those inquiries, and he is due to report next year. That is the position as I have had it reported to me from the Box, but I have no detailed knowledge of that.

I oppose that Clauses 77 to 79 and 81 stand part of the Bill, but I should like to speak to Clause 80 standing as part of the Bill. This is a technical provision to correct an anomaly in the procedure established for inquiries under the Inquiries Act 2005. At present, Section 18(7) of the Regulation of Investigatory Powers Act—RIPA—permits intercept material to be disclosed to the panel of an inquiry alone only where the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference.

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Section 18(7) does not permit intercept material to be disclosed to the person appointed as counsel to the inquiry. That means that the panel can currently share all of the sensitive material that it receives with counsel to the inquiry, apart from intercept material, because the RIPA provision covering inquiry panels does not include their own counsel.

Clause 80 is intended to correct that anomaly, so that the panel may order disclosure of intercept material to the person appointed as counsel to the inquiry where the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference. That will enable counsel to the inquiry to advise the panel on all sensitive material, rather than just all sensitive material other than intercept.

The proposals will operate in a very limited number of cases and do not undermine the current level of secrecy around intercept material. As such secrecy is maintained, the proposal does not undermine in any way the current prohibition on the use of intercept material in prosecutions, which would of necessity require disclosure of the material to the defendant personally.

Clause 80 will ensure that the panel and counsel to an inquiry can always have the information that they need to ensure that the inquiry can fulfil its role, whatever the source of that information on those very exceptional circumstances.

Lord Lloyd of Berwick: I entirely support what the Minister just said about Clause 80. It seems to me that if the panel has access to the intercept communication, it must be obvious that the counsel to the panel must also have access to that intercept material. As he stated, it is a technical provision, which should be supported.

Baroness Miller of Chilthorne Domer: Can the Minister expand a little on why the public interest immunity system that stood the test of time for so long is not now viewed by the Government as adequate, which is why they want to bring these provisions back, I understand, in the coroners Bill? Or is there a different reason? I understand the frustration of the noble and learned Lord, Lord Lloyd of Berwick, that we are pursuing this matter in depth, but that is important if we are to be asked to look at it again in what could be only a couple of months from now.

4 pm

Lord West of Spithead: Perhaps the noble Baroness would allow me to give her the reasons in writing, rather than have a long debate now.

Lord Kingsland: As I understand it, Clause 80 refers to inquiries.

Lord West of Spithead: Absolutely, but I thought that the noble Baroness had gone back to the coroners.

Lord Kingsland: I may have misunderstood the noble Baroness, but my understanding was that the matter to which the noble and learned Lord, Lord

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Lloyd, has just spoken was on Clause 80, which relates to inquiries. Rather confusingly, it comes in the middle of clauses on inquests, but is not related to them.

Lord West of Spithead: The noble Lord, Lord Kingsland, is absolutely right that the clause relates to inquiries. It is confusing that it is included there. I thank the noble and learned Lord, Lord Lloyd, for supporting me. It makes absolute sense to do that. I thought that the noble Baroness was returning to the issue of coroners, and that is why I said that I would come back to her in writing on the public interest immunity system in relation to coroners.

Clause 77 negatived.

Clauses 78 and 79 negatived.

Clause 80 agreed to.

Baroness Miller of Chilthorne Domer moved Amendment No. 126A:

126A: After Clause 80, insert the following new Clause—

“Inquests: intercept evidence

(1) In section 18(7) of the Regulation of Investigatory Powers Act 2000 (c. 23), after paragraph (c) insert—

“(d) a disclosure to a coroner or to a person appointed as counsel to an inquest or to members of a jury or to any properly interested person where—

(i) the coroner holding the inquest is a judge of the High Court; and

(ii) the coroner has ordered the disclosure to be made to the coroner alone or (as the case may be) to the coroner and the person appointed as counsel to the inquest or to members of a jury or to any properly interested person.”

(2) In that section, after subsection (8A) insert—

“(8B) A coroner shall not order a disclosure under subsection (7)(d) except where the coroner is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the matters that are required to be ascertained by the inquest to be ascertained.”

(3) In that section, after subsection (11) insert—

“(11A) References in this section to a coroner apply only where the coroner is a judge of the High Court.”

(4) This section has effect in relation to inquests that have begun, but have not been concluded, before the day on which it comes into force as well as to inquests beginning on or after that day.”

The noble Baroness said: When the question of inquests was first raised as an issue that would be included in the Bill, the Government made much of the fact that one inquest was unable to take place unless certain provisions were made to hold it in secret. In relation to the inquest into the Rodney death, which opened on 5 May 2005, a number of briefings suggested that there was a lot of difficulty in making in any way public some of the intercept evidence that was received. There is the matter of natural justice and of society’s confidence that inquests into such deaths should be held within a reasonable time afterwards—and 2005 is a long time ago. The inquest was held up and the family have been unable to have the benefit of hearing its results. The inquest is still outstanding.

For that reason, I tabled the amendment to suggest that if the difficulty was that coroners were unable to deal with such inquests, because the original Act,

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RIPA, allowed intercept evidence to be dealt with in a way that covered inquests and complied with Article 2 of the ECHR, the answer might be to have High Court judges sitting in coronial courts to see evidence that concerns interceptions.

The point of my amendment is to allow some debate as to whether that would be a way of resolving the difficult matter of the Rodney case. Since tabling the amendment, it has transpired that a second parallel case is now in court: the case of Terry Nicholas, who was shot by police in west London on 15 May 2007 in a planned Trident operation. So there are now two cases with worrying parallels: both concerned prior police intelligence and both resulted in someone being shot dead. The worry is that in both cases the inquests have been held up unduly. A pre-inquest hearing on the second case is due to take place tomorrow. When the IPCC looked at the second case, it said, on 28 November 2007, that in its opinion the inquest could go ahead without any unnecessary delay. Nearly a year has passed, so there has obviously been undue delay.

As more inquests are held up, one questions the Government’s intention. Do they think that my amendment would be a solution? I am very grateful to the noble Baroness, Lady Stern, for putting her name to my amendment. She is not able to be here today, but she feels that serious questions need to be answered. Would this amendment be an answer so that these inquests can be held, or will the families be left in limbo indefinitely? There are much wider questions. The rest of us need answers about such operations. I do not suggest that anything untoward took place—we simply do not know, which is the point of having inquests. I beg to move.

Lord Lester of Herne Hill: I declare an interest: I recently appeared on behalf of the Association of Chief Police Officers in the judicial review challenge to the Independent Police Complaints Commission in relation to two tragic cases where men were killed as a result of shooting by police officers in unusual circumstances. My simple point, which I am sure is entirely well-known to the Minister, is that in the scheme of things it is vital, as the learned judge, Mr Justice Underhill, pointed out in giving judgment on the Saunders and Tucker cases—I think, last week—that Article 2 of the European Convention on Human Rights is fully satisfied not only by having a proper independent investigation by the IPCC, but by having an inquest which fully satisfies the requirements of the convention. One has to look at the whole process, not just the IPCC investigation, but also, ultimately, the adversarial process which takes place before a coroner. Therefore, anything which can be done to make inquests happen more speedily and in a way that wins the confidence of the public, the next of kin and so on is to be desired. Whether this or some other amendment achieves that, I am sure that that is the right objective.

Lord Lloyd of Berwick: We are now back on to inquests as opposed to inquiries. As I understand it, it will be common ground that Clause 81 should not stand part. If that is so, it does not seem to me to make sense to accept Clause 80, which deals with intercept

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evidence at inquiries. Like everything else to do with inquiries, they must surely wait until we have the coroner's view.

Lord West of Spithead: I thank the noble and learned Lord, Lord Lloyd of Berwick, because I absolutely agree with what he has said on that point. Amendment No. 126A would allow for the wide disclosure of very sensitive material, such as intercept, to juries and other interested parties. That creates a potential for public disclosure of all types of sensitive material, including intercept and other things, and undermines the very real need to protect such material, and the sources and techniques by which we get it, from public disclosure. Although Amendment No. 126A will allow the finder of fact to have access to all the relevant material, it does so at the expense of preserving the “ring of secrecy”, which, as I said, is necessary to protect sensitive techniques and capabilities. It is also 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 involving the consideration of such material.

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, but it is necessary to strike a balance between the interests of families and the public interest when material central to the inquest cannot be disclosed publicly. It is much better to debate all these matters when we take it in the round of the new coroners legislation. We are confident that the measures we intend to bring forward—containing, as they do, the safeguards of a cadre of security-cleared coroners and arrangements for counsel—strike the right balance, but I do not think that there is much more to be gained by debating this further. On that basis, I resist the amendment.

Baroness Miller of Chilthorne Domer: I am sorry that the Minister’s reply is quite so negative, because by the time that we have debated the Coroners Bill in both Houses and it receives Royal Assent, four years will have passed since the death of Azelle Rodney. I may be missing something here, but I do not think that I am. If a High Court judge was sitting as a coroner and decided that public interest immunity was served by nondisclosure of facts that were particularly sensitive in either that case or the other one to which I referred, I cannot understand why the inquest cannot go ahead.

I would be very sorry if the Committee took the attitude that it is perfectly permissible, all right and something that we should not question that an inquest can take four years, or more, to come to pass. It does not matter whether the inquest is of someone who was undertaking criminal activity or not. We now have not just one but a second person who was shot by the police. They may have been taking part in criminal activity, but their deaths are still liable to be properly investigated by an inquest. They are not being investigated because the Government will not take them forward, prevent the coroner from undertaking them and then say, “You will have to wait until more legislation is in place”. That is not a satisfactory position for the Government to take.



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It is not only a question of natural justice for the families. When it was one case, it was really worrying. Now it is two cases; it seems that the Government are drifting into a habit on this. The Committee should be challenging that. I will withdraw this amendment in Committee, but the Minister should not feel confident that I will not bring it back on Report, because I shall. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 negatived.

Clause 82 [Amendment of definition of “terrorism” etc]:

On Question, Whether Clause 82 shall stand part of the Bill?

Baroness Neville-Jones: This is a probing issue, and one to which we may return on Report. I am not clear why it is necessary to amend the definition of terrorism in the way proposed. Can the Minister conceive of a circumstance in which a “racial” cause is not already encompassed within the phrase “political, religious or ideological”? The term “racial” is not substantive with regard to motivation or end, as are the terms “political”, “religious” or “ideological”.

I am aware that the noble Lord, Lord Carlile, who proposed the change in his report in March 2007, said that he believed that it was covered by current law, which, frankly, is good enough for me, but that it would “send a positive message” as well as achieve “some”—some—“increase in legal clarity”. I am not convinced of this. It is bad legislation to add unnecessary categories. Will the Minister say where he thinks he should take this added word?

Finally, given that we do not yet have an internationally agreed definition of terrorism, will the Minister say what efforts the Government are making and what progress is being made to secure one?

4.15 pm

Lord West of Spithead: The noble Baroness has touched on an issue that is not of huge import, because, as she rightly says, we could probably catch terrorists who are involved in that sort of thing without having “racial” in the definition. As she said, the March 2007 report by the noble Lord, Lord Carlile, on the definition of terrorism brought this up to enhance clarity. We accepted this in our response to his report, which we published on 7 June 2007. As I say, we believe that any relevant acts or threats are likely to be committed for a political or ideological purpose. We also believe, however, that the specific inclusion of “religious” in the current definition could lead some to argue that racially motivated terrorism has been specifically excluded. We may be wrong, but that is why we have gone down this route, particularly because “racial” and “religious” are often tied together in other legislation as, for example, racial and religious hatred and racially and religiously aggravated offences.

Clause 82 puts it beyond doubt that racially motivated terrorism is included in the definition. It will not widen the scope at all. It would not, for example, bring the activities of far-right groups within this definition. These are already covered where they meet the tests set

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out in the definition of terrorism in Section 1 of the Terrorism Act 2000. The clause is included for those reasons and for clarification, and should stand part of the Bill.

Lord Lloyd of Berwick: Am I correct to read between the Minister’s lines in thinking that, having appointed the noble Lord, Lord Carlile, to carry out this quite lengthy investigation into a new definition of terrorism, it is really only polite to incorporate something in the Bill?

Lord West of Spithead: I would not quite put it in those terms. I hope that my explanation that it should be there because it fits in with a number of other pieces of legislation can be taken at face value.

Lord Lester of Herne Hill: Is the point that if terrorists say that they want to kill Jews not because they are a religion but because they are a race, they might somehow not be within the definition of terrorism, and that the advantage of bringing race into the definition is that it covers killing Jews, whether they are regarded as a race or a religion?

Lord West of Spithead: We want to ensure that people do not argue that racially motivated terrorism has been specifically excluded. The reality is that “racial” encompasses people anyway. It is just for clarity and because some people might well argue that we are trying to exclude it for some reason. We are not. It simply makes sense to include it on that basis.

Baroness Falkner of Margravine: I did not intend to speak, although I was intrigued by the clause, as was the noble Baroness, Lady Neville-Jones. The Minister’s reply concerns me, because he has more or less said to the Committee that the word is there only because my noble friend Lord Carlile thought that it was appropriate to have it there. We do not know why the noble Lord wanted it there, and the Minister seems to think that it will reduce confusion because “racial” and “religious” have tended to go together in recent times. Many of us who have opposed the insertion into recent legislation of as much religion as there is would argue that it adds to confusion. It is completely erroneous to argue that adding “racial” because “religious” and “racial” have tended to go together for the past five years or so will reduce confusion. Ethnicity will be brought in, and there will be all sorts of other confusions, such as whether we consider Jewish people to be a religious group or a racial one. In case the Conservatives suggest that the opposition to the Question was only probing, I suggest that it may well turn out to be more and might come back on Report.

Lord West of Spithead: I totally disagree with what the noble Baroness has said. The provision is for the avoidance of any doubt and is included on the basis that I explained. I do not believe that it will add to any of the issues she mentioned. It will stop arguments and debates being made on the basis that racial factors are excluded. It is quite a standard way of having things: we refer to racially and religiously aggravated offences, and so on. That is the sole basis on which the provision has been included.


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