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The elected House of Commons exists, among other reasons, to protect people’s individual freedoms and to see that the state does not go beyond reasonableness in holding information about them. I hope that the Minister will tell us that the Government are concerned about this. I hope that their failure to accept the amendment is only a holding operation and that they are as concerned about individual freedom and the protection of the citizen as we are. I hope that they intend to examine the matter in depth and, in due course, to bring forward legislation to protect the citizen from having unnecessary information held by the police, the security services and, perhaps, a whole range of other organisations.
Lord West of Spithead: My Lords, as the noble Baroness, Lady Hanham, said, I am on record as saying—and I firmly believe—that there is need for a wide debate on DNA. In this country, there is a wide range of views. Some people think that anybody who has not been convicted of a crime should not be on the database, whereas a large number of people think that 100 per cent of the population should be on it. This answers the point of the noble Viscount, Lord Bledisloe. There needs to be a debate about this, because all those points of view are valid. I have talked to government colleagues about this and I am not quite clear exactly how it will be done, although I certainly do not think that it will be done in this context.
The noble Baroness, Lady Miller, said that there had been no exposure of the arguments. However, in this place and the other place there was considerable exposure of the arguments. To answer the noble Lord, Lord Stoddart, if he reads Hansard he will see that there was considerable debate in the other place about this issue. However, as far as I understand it—I know that I am new to this House—it is an established convention not to challenge the reasons why the other place has disagreed to an amendment when it does so on the ground of financial privilege. I understand that that is what is done. Therefore, I ask the House not to insist on its Amendment No. 2.
3.30 pm
Lord Thomas of Gresford: My Lords, has the Speaker certified in accordance with the terms and procedures of the 1911 Act to which the noble Lord, Lord Elystan-Morgan, referred?
The Lord President of the Council (Baroness Royall of Blaisdon): My Lords, as I understand it, it is not necessary to do that—if the reason given is privilege, it is not necessary to go through the procedures outlined by the noble Lord. The Companion states that the Commons,
- “add words to the effect that the Commons do not offer any further reason, trusting that the reason given may be deemed sufficient. In such cases the Lords do not insist on their amendment. But they may offer amendments in lieu of amendments which have been disagreed to by the Commons on the ground of privilege”.
Lord Elystan-Morgan: My Lords, that is not the most compelling argument that I can think of. I am as sure as I can be—it is a long time since my student
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Baroness Royall of Blaisdon: My Lords, I am advised that the 1911 Act is specifically to do with money Bills. Having said that, I realise that the reason given for privilege is precisely because it is a financial privilege. I hear what the noble Lord says, but I am informed that we are acting in accordance with the proper procedures.
Baroness Hanham: My Lords, I am not about to challenge that. It has been my understanding all along that, if privilege came forward, I would be unable to test the opinion of the House, which, I am bound to say, I would have been tempted to do again. I cannot do that today and I accept that that is what the Companion says. However, like other noble Lords, I find this unsatisfactory, even more so when the reasons for the privilege are not really spelt out to us. The noble Lord has just sat down without giving any reason from the other place as to what lies behind privilege being put on the amendment. I know only because I happen to be told, and not by Ministers, that the reason was that the amendment would potentially increase the cost enormously. On the day that the Pre-Budget Statement is being made, as this country goes into debt in an enormous way, I find that rather hollow.
I can do no more about that. I simply say to the Minister that this debate will go on. I hope that there will be guidelines and that the Government will understand that the guidelines now need to be statutory—underpinned by legislation. The noble Lord says that he does not see how debate can take place. Draft legislation would go out to all those interested, which would give the opportunity for views to be heard and then an opportunity for Parliament to consider the matter again. I can say no more on the subject today, but we will certainly ensure that it comes back to this House in due course. I regret that the other place has moved in the way it has.
On Question, Motion agreed to.
Motion BLord West of Spithead: My Lords, I beg to move that the House do not insist on its Amendment No. 3, to which the Commons have disagreed for their reason 3A; that the House do not insist on its Amendment No. 15 and do agree with the Commons in the Amendments Nos. 15A to 15C in lieu; and do agree with the Commons in their Amendment No. 115A as an amendment consequential on Lords Amendment No. 115.
Amendment No. 3 adds into the Bill a meaningless declaratory clause that has no legal effect. Amendment No. 15 removes what was Clause 33 of the Bill when it came from the other place. This clause contained minor amendments to the existing pre-charge detention scheme in Schedule 8 to the Terrorism Act 2000 that are unrelated to any extension of pre-charge detention beyond 28 days. What was Clause 33 was inadvertently
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Moved, That the House do not insist on its Amendment No. 3, to which the Commons have disagreed for their reason 3A; that the House do not insist on its Amendment No. 15 and do agree with the Commons in the Amendments Nos. 15A to 15C in lieu; and do agree with the Commons in their Amendment No. 115A as an amendment consequential on Lords Amendment No. 115.—(Lord West of Spithead.)
On Question, Motion agreed to.
Motion CLord West of Spithead: My Lords, I beg to move that this House do not insist on its Amendments Nos. 106 and 133, to which the Commons have disagreed for their reasons 106A and 133A.
As noble Lords are aware, we share a common desire to ensure that a coroner’s inquests are completed as soon as possible so that the families of the bereaved can get some sort of closure. We remain committed to finding a way of ensuring that such inquests are Article 2 compliant and that bereaved families and other interested parties are involved to the extent necessary to safeguard their legitimate interests and to properly understand the circumstances of the death of the individual. Against this, we need to ensure that sensitive material is properly protected. This is because disclosure could damage national security or place others at risk. Amendments Nos. 106 and 133, made by this House on Report, would mean that sensitive material could be disclosed to members of the public, and for that reason I ask that the House do not insist on these amendments.
Moved, That this House do not insist on its Amendments Nos. 106 and 133, to which the Commons have disagreed for their reasons 106A and 133A. —(Lord West of Spithead.)
Baroness Miller of Chilthorne Domermoved Amendment C1, as an amendment to the Motion, at end insert “but do propose Amendments Nos. 106B and 133B in lieu:
106B: Insert the following new Clause-
“Inquests: intercept evidence(1) In section 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) (exceptions to section 17), after subsection (7)(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
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(ii) the coroner has ordered the disclosure to be made to-
(a) the coroner alone; or
(b) the coroner and, if he is satisfied that the disclosure will not prejudice national security, the person appointed as counsel to the inquest or to members of a jury or to any properly interested person; or
(c) the coroner and, if he is satisfied that it is necessary to avoid prejudice to national security, in redacted form to 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.”
133B: Line 6, after second “to” insert “inquests and”
The noble Baroness said: My Lords, the Minister has summed up the issue. This amendment addresses the rights of families and society that an inquest be held within a reasonable time. The UK has been proud to fulfil that right since long before the Human Rights Act existed. As the noble Baroness, Lady Stern, reminded us on Report:
“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”.—[Official Report, 11/11/08; col. 600.]
I remind the House of the urgent need for this amendment. It has been highlighted by two cases in particular, one of which has been outstanding for three and a half years, apparently due to the fact that the coroner might be faced with sensitive intercept material. We also heard about the work programme dealing with the outcome of the Chilcot review and it seems that any comprehensive solution to the use of intercept material evidence is some way off. In the mean time, these inquests must be held or we will simply not be Article 2 compliant, nor doing right by the families of these people and society as a whole. The amendment is the solution.
Since we last debated this issue in your Lordships’ House, it has been the subject of an especially well informed and interesting debate in another place. Richard Shepherd MP said that,
- “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”.—[Official Report, Commons, 19/11/08; col. 276.]
That sums up the dilemma very well.
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Those honourable and right honourable Members who contributed to the debate in the other place made some very helpful points which I have today incorporated into my original amendment. In particular, the contribution of the right honourable Mr Douglas Hogg MP was very valuable. He has had the experience of being responsible for GCHQ for a number of years. He said that the amendment, which he strongly supported, would be further improved if it was amended to the effect that the disclosure would not be injurious to the national interest, a point supported by my friend David Heath, who felt that further refinement is required. That is what we have done.
Indeed, the Minister himself, the noble Lord, Lord West of Spithead, said on Report that:
“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”.—[Official Report, 11/11/08; col. 602.]
In response to this, we have added proposed new paragraph (d)(ii)(a), (b) and (c), which is a graded disclosure menu from which the judge sitting as a coroner can choose. The Government no longer rely on the reason for rejecting this—that there is no mechanism to appoint a judge as a coroner—which the Minister originally claimed in this House. We corrected the record here but it was repeated in the other place by the Minister, Vernon Coaker. I therefore put on record again that under Section 14 of the Coroners Act 1988 coroners can apply for the jurisdiction of an inquest to go to a circuit or High Court judge. I remind the House that a judge is sitting on the ongoing inquest into the Jean Charles de Menezes case. We can dispose of that government objection and it then comes down to the national security issue. We accept that there are strong reasons for dealing with the issue of national security and our amendment now meets those concerns.
In the interests of speeding up these inquests, which the Government will have to do, they will not need to invent a whole new mechanism. I hope that they will listen to the wise words of so many in the other place, which were summed up by Mr Edward Garnier when he said:
“There are practical solutions that enable us to comply as best we can with article 2 and to allow the bereaved to have the necessary information to understand why their loved ones were killed or died. There is sufficient goodwill across this House and between the two Chambers of Parliament to enable us to arrive at a sensible solution”.—[Official Report, Commons, 19/11/08; col. 289.]
That is what I am asking for today.
The Government must trust the judges. If they accept the amendment, that is what they will be doing. If they fail to accept the amendment, they are saying that they do not trust the judges, and that is a very serious state of affairs. If they feel that the amendment could be further improved—that it has technical flaws or is grammatically imperfect—they have time to address that when they take it back to another place. What cannot continue is a situation where inquests such as those now outstanding run for more than three years.
We accept that there is a balance between the right of the bereaved in society to know why somebody has been killed or has died at the hands of the state, and
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Moved, Amendment C1, as an amendment to the Motion, at end insert “but do propose Amendments Nos. 106B and 133B in lieu”.—(Baroness Miller of Chilthorne Domer.)
Baroness Neville-Jones: My Lords, I support Amendments Nos. 106B and 133B, tabled in lieu of Amendments Nos. 106 and 133. If, as the noble Baroness, Lady Miller, said, there were deficiencies in the previous amendment as regards the national security interest, it seems to these Benches that they have now been corrected with the detailed and specific amendment that replaces the original one. It does not seem that there is any risk of national security being prejudiced by the acceptance of the new amendments. In our view, Amendment No. 106B accommodates the concerns expressed in the other place.
There is widespread support for this measure across your Lordships’ House and in another place. It will address an anomaly in RIPA and ensure that all inquests comply with Article 2 of the ECHR. The point is not simply that inquests should be institutionally independent, but that they should be prompt. Part of the problem here is that we are delaying justice in several cases, which is not good for the reputation of British justice.
The Minister, and the Minister of State for Policing, Crime and Security in the other place, said that the Government will bring forward proposals to address these issues in the coroners Bill in the next Session. However, in outlining the proposals, the Minister of State said that the proposed power of the Secretary of State to issue a certificate requiring an inquest to be held without a jury will not necessarily allow intercept evidence to be admitted. It does not seem that we can rely on forthcoming legislation to accomplish what the amendment seeks to do. The Government have withheld their assent to the proposition that, in this legislation, the point will be accommodated.
We cannot wait for—or rely on—the Government to act. From these Benches, I say that now that the Government’s objections to the previous amendment have been met, it will be very disappointing—I hope it will not be the case—if the Government find themselves unable to accept an amendment that accommodates their previous objections. It is unacceptable that a number of inquests have been delayed and cannot take place because of a continuing anomaly in the law. We support the amendments.
Lord Lloyd of Berwick: My Lords, I have been in favour of the introduction of intercept evidence for the purpose of convicting criminals for so long that my natural inclination is to vote for the amendment; indeed, that is why I voted in favour of it at Third Reading. Of course we are not dealing with criminal proceedings here, but the considerations are very similar.
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I can see the argument that we should wait for the coroners Bill to come to us, and the argument, perhaps even more relevant, that we should wait for the final report of the privy counsellors who are dealing with the question of intercept evidence. On the other hand, strong arguments have been put forward to deal with this particular case now. The reason given by the House of Commons for disagreeing with the Lords amendment is not altogether satisfactory; it is simply that,
But the coroner, when he is a High Court judge, is hardly to be regarded for that purpose as a member of the public—nor, indeed, is counsel to the coroner.
The only problem remains the reference in the amendment to “other interested persons”. That might well be said to go too wide, but it is dealt with in the final sub-paragraph of the amendment, which says that if the High Court judge has doubts about such a person, the material should be released to him in a redacted form, which would save the sensitivity of the information, and if it cannot be released to him in a redacted form it will not be released to him at all. For those reasons the amendment deserves our support.
Baroness Manningham-Buller: My Lords, I have sympathy with the amendment but I see a practical problem: if the material is released to the coroner and he judges its release beyond him with regard to prejudicing national security, even if so seriously redacted that it is of little use to the workings of the coroners court, what happens then? That is the crunch. These look like safe recommendations to protect national security—what the noble Baroness, Lady Miller, described as a sort of tiering of protection—but if the High Court judge says that the release of the material would prejudice national security and it is so severely redacted as to be of little use to the conduct of the coroners court, I am not clear what then happens.
Lord Ramsbotham: My Lords, I support the amendment. I admit that at Third Reading I voted against it because I am particularly keen to see a coroners Bill that is all-embracing and sweeps up a large number of other issues that I hope will be in it, such as matters affecting the Armed Forces and matters affecting those in custody, the families of whom have to wait far too long for a bereavement to be closed.
In the debate in the other place, however, I was very taken with the clarity of the arguments that were put forward and which have been quoted by the noble Baroness, Lady Miller. Since then I have spoken to the solicitors involved in this case, who have been quoted both in this House and in the other place, who told me of the promises that have been made to them by the Government, stretching back to November 2007, that the case on which the many arguments have been based would be brought to a speedy solution. Nothing has happened. We have delays on the movement of government promises quite apart from the procedures in the Bill. I am satisfied in my own mind, if that does not sound arrogant, that the changes made to the amendment since it was last brought before us have advanced the issue a great deal further. I therefore hope that this time the Government will agree to the
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Lord Robertson of Port Ellen: My Lords, I oppose the amendment. I declare a not very relevant interest: I am an adviser to Cable & Wireless plc, which is the second largest telecoms provider in this country. On a number of occasions, we have debated the use of intercept material and the implications for national security, especially for the sources of sensitive information on which we rely in this country and on whose reliance we have found the solution to a number of major threats. The problem is that this enters a very big back door.
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