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Finally, the noble Lord, Lord West, argued that this debate should take place within the proposed coroners Bill, but I must point out that that would result in the delay of this inquest taking place for probably a further year, if time is found in the Queen’s Speech and the subsequent programme for the coroners Bill to happen at all. The Government have said that it will, but at best it will not have Royal Assent for a considerable time. In any case, I still have not heard clearly from the Minister why it would not be a good idea to amend, as my amendment suggests, the Regulation of Investigatory Powers Act 2000 to enable a High Court judge to do as he does in all other facets of his work and be covered so that he can sit as a coroner to hear these urgent cases—particularly, the original one, but now also the
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Baroness Stern: My Lords, I am grateful to the noble Baroness, Lady Miller, for dealing with this matter in Committee and again today so very effectively. I have added my name to the amendment in order to support the noble Baroness. I have little to add, except to say that we now have two inquests pending. Two people have been killed in circumstances that require an inquest. Until the law is clarified it seems that these inquests will remain in limbo.
The Minister has encouraged us to look forward to the forthcoming coroners Bill. Even if that were to take place as we have been led to expect and the inquest was subsequently dealt with expeditiously, the family would have had to wait at least four years before there was a conclusion to the matter. If the forthcoming legislation does not come in as planned, it may be very much longer for the first case that we are discussing.
The obligation under Article 2 of the European Convention on Human Rights to have a prompt inquiry into a death at the hands of an agent of the state is a heavy one. It is a vital part of the state’s accountability to its citizens. At the moment, this cannot happen in those cases because of the anomaly that this amendment seeks to remove. As the noble Baroness, Lady Miller, has said, I, too, hope that the Minister has had second thoughts about his objections to this provision and will be able to support what is being proposed.
Lord Kingsland: My Lords, I rise from the Opposition Benches to support the amendment tabled by the noble Baronesses, Lady Miller and Lady Stern.
Article 2 of the European Convention on Human Rights places a duty on the state to investigate any death in custody by means of an inquiry which is capable of enabling those responsible to be identified and, if necessary, punished. I trust that that is indisputable.
However, under existing English law, coroners are not permitted to see, let alone disclose to interested parties, any Regulation of Investigatory Powers Act 2005 material, even if such evidence is crucial in ascertaining how a person came to die. The consequence of that state of affairs is that our coronial law is not Article 2 compliant.
In Committee, the noble Lord, Lord West of Spithead, said that the amendment would allow,
On any objective assessment of the situation, this simply cannot be the case. The proposed change to the Bill would merely bring the treatment of such material into line with the way it is treated in criminal proceedings, generally.
For the terms of the amendment to be applicable in any given set of circumstances, the coroner would have to be a High Court judge, appointed under
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Lord West of Spithead: My Lords, I was glad that the noble Baroness, Lady Miller, said that she did not intend opening the whole debate as regards moving details of coroners and inquests from this Bill. After very extensive consultation with noble Lords, we correctly decided that it was best to withdraw this aspect and that we would address it in the context of a much more detailed look at all aspects of coroners and inquests in future legislation.
There has been mention of ongoing cases. Clearly, I cannot touch on or talk about those in the Chamber. All I would say, even though I know that the noble Baroness, Lady Miller, did not mean to raise the issue in that way, is that we have to be very careful about raising issues such as “shoot-to-kill” as if it is something that is under way. It is very dangerous to mention that on the Floor of the House because there is no way that that is the case.
I shall address in detail some of the points made. It is worth saying again that, for a number of reasons, sensitive material cannot be publicly disclosed without harming the public interest. Such material can cause great damage to national security and police investigations of serious organised crime. Indeed, in terrorism cases we have seen how rapidly the people who wish to cause us harm pick up on the techniques we use. Even if they are mentioned only a little bit, those people react by not using certain equipment and so on. As has been said, Article 2 of the ECHR makes it obligatory to hold an investigation into deaths in certain circumstances; there is no discretion not to hold such an investigation. Accordingly, and unlike in the case of criminal prosecutions, the state cannot protect this sensitive material simply by discontinuing the investigation. A means must be found for bringing sensitive material before an independent fact finder while protecting the public interests involved.
In order to address this problem in relation to inquests, we intend to bring forward proposals in legislation regarding coroners. That would permit the Secretary of State to issue a certificate requiring an inquest to be held without a jury if, in the opinion of the Secretary of State, the inquest would involve the consideration of material that, in the public interest, should not be made public, including to a jury or interested persons. As a result of certification, the finder of fact would be a coroner rather than a jury, as already occurs in 98 per cent of inquests. The coroner, who would continue to be a fully independent judicial office holder, would be security cleared to receive all relevant material. Any parts of the inquest involving the consideration of material which should not be disclosed publicly would be held in private in the absence of the next of kin. Where necessary, the coroner would be able to appoint independent security-cleared counsel to the inquest to represent the interests
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I have to disagree with the noble Baroness, Lady Miller, because I believe that Amendment No. 48 would allow for the wide disclosure of very sensitive intercept material not just to the coroner but also to juries and other interested parties such as bereaved families. This creates the potential for public disclosure of all intercept material regardless of sensitivity, thereby undermining the very real need in some circumstances to protect from public disclosure such material and the capabilities and techniques by which it was obtained. While Amendment No. 48 would, in principle, 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 is necessary to protect sensitive techniques, capabilities and sources. It cannot be overemphasised how valuable those capabilities are to the nation. Certainly for over 40 years in peace and war, I have made use of those capabilities; I know that they save lives and help us stop those who want to damage our nation.
Disclosure of intercept capabilities would have a real and damaging impact on our ability to gather the intelligence that is vital to our national security. The Chilcot review on intercept as evidence recognised this, and that is why we are taking forward a detailed programme of work to ensure that we can meet the tests set out in the review and allow intercept to be used safely, without putting national security at risk. This amendment affords no safeguards or protections. 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 the families and the public interest when there is material that is central to the inquest but which cannot be disclosed publicly. We are confident that the measures we intend to bring forward in coroners’ legislation, with the relevant safeguards, will strike the right balance of enabling the coroner to consider all the relevant material whileprotecting sensitive material from public disclosure contrary to the public interest.
I am aware of the delay—it is an unpleasant and unfortunate delay—but it is right that we should get this legislation correct because we are considering issues that are so important to the nation that we cannot afford to rush it. I know that two cases are outstanding, but this has to be right. The Government will therefore resist Amendments Nos. 48 and 62, which makes a consequential amendment to the Long Title adding a reference to inquests.
Baroness Carnegy of Lour: My Lords, the amendment is drafted entirely in relation to England and Wales, and the Minister’s reply is likewise drafted. Presumably future legislation in so far as it deals with matters
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Lord West of Spithead: My Lords, I shall get back to the noble Baroness on that. I am not trying to forget Scotland—I was educated there—but there are some difficult nuances that we found during our work on the Bill. I shall respond in writing.
Baroness Miller of Chilthorne Domer: My Lords, I am grateful to the noble Baroness, Lady Stern, and the noble Lord, Lord Kingsland, for their support. I am very disappointed with the Minister’s reply because it does not take us any further forward than his response in Committee. In my opinion he has not addressed the question of why a High Court judge can assess such material in criminal procedures of every other kind when coming to a judicial view as to what material should not be disclosed, but not in inquests. I do not feel that the Government’s position is logical.
The Minister took me to task by saying that it was dangerous to use a phrase like “shoot to kill policy”, and I agree that it is. I said in my introduction that we must avoid at all costs a view on why agents of the state act in this way. However, the only way to make such a judgment is through holding an inquest to discover what actually went on. In the absence of any further explanation than we had in Committee, I have no option but to test the opinion of the House.
6.18 pm
On Question, Whether the said amendment (No. 48) shall be agreed to?
Their Lordships divided: Contents, 139; Not-Contents, 136.
Addington, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bates, L.
Bilimoria, L.
Bowness, L.
Bradshaw, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Caithness, E.
Cameron of Dillington, L.
Carnegy of Lour, B.
Cathcart, E.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
D'Souza, B.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Fearn, L.
Feldman, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Garel-Jones, L.
Glasgow, E.
Glentoran, L.
Goodhart, L.
Greaves, L.
Hamilton of Epsom, L.
Hamwee, B.
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Henley, L.
Higgins, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Roding, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Luke, L.
McAlpine of West Green, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Pannick, L.
Parkinson, L.
Pearson of Rannoch, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selborne, E.
Sheikh, L.
Shephard of Northwold, B.
Sheppard of Didgemere, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tordoff, L.
Trefgarne, L.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warsi, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Adams of Craigielea, B.
Adonis, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Ilminster, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Bew, L.
Bhattacharyya, L.
Blood, B.
Borrie, L.
Boston of Faversham, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Chester, Bp.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Condon, L.
Corbett of Castle Vale, L.
Corston, B.
Cox, B.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
Elystan-Morgan, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greenway, L.
Griffiths of Burry Port, L.
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Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Inge, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Leitch, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Manningham-Buller, B.
Massey of Darwen, B.
Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Myners, L.
Newcastle, Bp.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsbotham, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Slim, V.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Snape, L.
Soley, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tunnicliffe, L.
Turnberg, L.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
6.30 pm
Clause 74 [Amendment of definition of “terrorism” etc]:
Baroness Neville-Jones moved Amendment No. 48A:
The noble Baroness said: My Lords, this amendment concerns the definition of terrorism. We have tabled it once again. When we discussed the Government’s intention to amend the definition of terrorism in Committee, the overwhelming view was that it was unnecessary. That remains the view of these Benches. As I said then, the term “racial” is not substantive with regard to motivation or end, unlike the terms “political”, “religious” or “ideological”. That is the nub of this amendment. We cannot conceive of a circumstance in which a racial cause is not already encompassed in the phrase “political, religious or ideological”. The Minister failed in Committee to convince us of the need to amend the definition and I hope that he might now agree to remove the term. I beg to move.
Lord Carlile of Berriew: My Lords, as I have said before, I intervene rarely in these debates as the independent reviewer of terrorism legislation, but I thought that I ought to intervene on this occasion
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I was asked to carry out a review of the definition of terrorism in UK law and did so. In carrying out that review, I issued a call, which was advertised publicly, for papers and for views. I received a great many written views in formal documents, by e-mail and in other ways. I also took a roving seminar out to five major cities. I was assisted in inviting to those seminars members of the public, members of the academic community and members of community groups. The attendance at the seminars was variable but overall they were well attended.
One of the messages that came across from the representations that I received was that black and minority ethnic communities felt that the inclusion of a term such as “racial” in the definition would make it clear that activities such as those of, for example, the white supremacist movements that have arisen in certain parts of the United States could, in certain circumstances, be regarded as terrorist activities. It seemed important that, if we could do so without damaging the definition in any way, we should meet those concerns, so I recommended that the term “racial” should be added, or something along those lines.
I am not sure, if I may say so with respect, that it is helpful to parse the words and their many possible meanings on the Floor of either House of Parliament. I think that I could argue the case for “racial” being distinct from the other words that are included, “political, religious or ideological”. That does not mean that every racial cause would be treated as terrorist. Every ideological cause is not treated as terrorist; for example, it has become the practice to deal with animal rights terrorism not using terrorist provisions—at least, wherever possible—but under criminal law without giving the protagonists the cachet of regarding themselves, or being regarded, as terrorists. The same could apply to racial causes.
I say to your Lordships, without delaying the House further, that the term is included to meet a perception that is potentially damaging to the reputation of the law and which can be met without doing any damage to the integrity of the law.
Lord West of Spithead: My Lords, as has been said, this amendment to the definition follows recommendations by the noble Lord, Lord Carlile. We accepted this recommendation in our response to his report on 7 June 2007. The change in the definition of terrorism is an opportunity to make it clear that terrorism includes acts and threats done for the purpose of advancing a racial cause.
I do not deny that acts of terrorism motivated by a racial cause are already covered by the definition, since such acts are also likely to be political or ideological. However, the same could also be said of acts of terrorism motivated by a religious cause, but Parliament chose to include religiously motivated terrorism in the definition of terrorism. The position that I have elaborated on makes it important that we now include racially motivated terrorism in the definition. The reason is that, with the exclusion from the definition of racially
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That argument can be developed, too, as religious and racial motivation are so often intertwined in other pieces of legislation—for example, in racial and religious hatred and racially and religiously aggravated offences. Racial motivation is also referred to alongside other motivations, such as religion and politics, in the definitions of terrorism used by the United Nations in Resolution 1566 and by the Council of Europe Convention on the Prevention of Terrorism. As I said, perception is important and we should be clear that those who commit acts of terrorism with a racial motivation are covered by our legislation.
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