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I am deeply unhappy at the Government’s suggestion that anything held under the Inquiries Act 2005 would substitute for an inquest. I understand why the Government have put this forward, because they are in a very difficult position with the Azelle Rodney case, but I hope that all Members of this Committee will view this proposition with a good degree of scepticism and that, during this debate, we might find a different way forward.
Lord Kingsland: I have considerable sympathy with the amendments tabled by the noble Baroness, Lady Miller, but tonight is certainly not the time to make a final decision about these matters.
I have tabled Amendment 46, which sets out what we require as the minimum amendments necessary to the Inquiries Act to make it a viable vehicle for the purpose that the Government appear at the moment to intend. I am uneasy about using the Inquiries Act for this purpose because its procedures are initiated by an executive act by the Secretary of State, and the investigation flows from that act. By contrast, coroners are centuries-old, well established public figures who are independent of the Executive; and, as a matter of principle, one would wish that all inquests were conducted through the coronial system.
If the Inquiries Act is to play some role in future, however, then in my submission at least four amendments to it are needed, to Sections 3, 5, 13 and 19. The amendment to Section 3, in our submission, requires that where an inquiry is to be used as an inquest, it will always be chaired by either a High Court judge or a more senior judge.
Section 5 permits the Minister, believe it or not, to change the terms of reference of an inquiry in the course of the inquiry. I remember that, at the time when the Inquiries Act was before your Lordships’ House in the form of a Bill, that power was much fought over. Surely, whatever value it might give to some inquiries in future, it cannot possibly have a role in an inquiry that, in effect, is performing a coronial function. It would be outrageous if the Secretary of State attempted, in the course of an inquiry looking into the death of someone under Clause 5 to seek to change the terms of reference of that inquiry.
Section 13, which gives the Secretary of State the power to suspend an inquiry at any point, ought to be amended in the case of inquiries investigating deaths that fall into the category of Clause 5. Any attempt to seek to suspend the inquiry should have the consent of the judge who is chairing it.
Section 19 gives wide powers to the Secretary of State to restrict public access to the documentation of the inquiry. We believe that any restrictions placed on such documentation should be placed on it only with the consent of the chairman of the inquiry, the High Court judge or more senior judge.
From our point of view, those would be the minimum changes necessary if the issue of an inquiry under the Inquiries Act should be pursued any further.
Lord Pannick: I, too, support the amendments that have been proposed by the noble Baroness, Lady Miller, and the noble Lord, Lord Kingsland. The problem is that the sensitive cases which cause
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Schedule 1(3), the subject of Amendment 33, requires the senior coroner to suspend his investigation if the cause of death is to be “adequately investigated” under the Inquiries Act. That is the Government’s proposed solution. Yet Schedule 1(3) begs the essential question because the Inquiries Act procedure is simply not adequate in this context. It has serious defects, as the noble Lord, Lord Kingsland, suggested, by reason of the powers that it confers on the Minister to both institute and intervene in the work of the inquiry.
Amendment 46 identifies some of those defects, in particular the power to suspend the inquiry and the power to restrict public access. Would the noble Lord, Lord Kingsland, and the Minister reflect on further provisions in the Inquiries Act which also need amendment if that Act is to be used in Clause 5 cases? Under Section 14 of the Inquiries Act, the Minister has a power to bring an inquiry to an end at any time he so wishes. Under Section 25, the Minister has power to withhold the publication of any part of the report if he considers it to be in the public interest to do so. Those powers, as well as those in Sections 5, 13 and 19 which Amendment 46 addresses, are quite impossible to reconcile with a judicial procedure which is independent, seen to be independent, and commands public confidence in these sensitive cases.
I hope the Minister will be able to tell us tonight that the Government will reflect on this important matter.
Lord Bach: I intend to be fairly brief in my response. As the noble Lord, Lord Kingsland, indicated, these are not matters to be decided tonight. We need to come back to them, but it is a useful first exchange across the Dispatch Box and around the Committee on this particular topic. I am grateful to all noble Lords who have spoken: the noble Baroness for her amendments and the noble Lord, Lord Pannick, too.
My comment tonight is that I welcome the fact that Amendment 46, which the noble Lord, Lord Kingsland, spoke to, appears to accept that establishing an inquiry to investigate the circumstances of a particular death may be an appropriate way of proceeding. Maybe we read that wrong, but his amendment proposes a number of significant changes to the Inquiries Act in such cases.
The Government have made it clear that we will do everything we can in any particular case not to go down this avenue if there is a way in the coronial system of hearing a sensitive inquest. If we could, we would. This is not our first choice, which is to use the coroners system in every case. If we cannot, we feel we have to find an alternative. The alternative we have found is the Inquiries Act 2005.
As to the details of the noble Lord’s amendment, I should like to say this about the various changes he wants to see. To be fair to him, he says that that is a prerequisite before he could consider supporting what we are doing. On the chairmanship of an inquiry established for these purposes, I assure the Committee
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As to the other changes the noble Lord has proposed, we remain to be persuaded that they are necessary. Removing the ability to amend the terms of reference of an inquiry into the circumstances of a person’s death might be detrimental to the interests of the bereaved family given that information could come to light which suggests that the terms of reference should be revised. That said—I repeat what I said when I spoke to my amendment—we would expect the terms of reference for any inquiry to reflect the matters to be ascertained by a coroner set out in Clause 5 and it is unlikely that, once set, they will need to be changed.
As to the powers vested in the responsible Minister to suspend an inquiry and restrict public access—something that has exercised the noble Lord, Lord Pannick—we cannot see why different arrangements should apply in the case of an inquiry examining the circumstances of a person’s death compared with any other inquiry which, by its nature, is also likely to be considering issues of considerable public importance. We believe that the decision whether to restrict public access to safeguard national security or international relations should properly rest with Ministers which is what, as I understand it, occurs at the moment.
We would expect the greater part of any inquiry to be held in public. While legal aid is not available, the chairman of such an inquiry may award an amount in respect of legal representation for interested parties. Decisions made by the chairman of an inquiry—for example, to exclude the public from certain parts of it—are open to judicial review. That is all I want to say on this issue tonight. The noble Lord, Lord Pannick, asked whether we will consider what has been said. Of course we will. I want to make it absolutely clear that our position is as it is at present.
Amendments 32 to 36 deal with the relationship between a coroner’s investigation and a public inquiry into the same death. It is entirely appropriate that where an inquiry is established into the circumstances of a death, the coroner’s investigation should be suspended and resumed only if the coroner considers that there are exceptional reasons to do so.
The Bill also provides that an investigation may not be resumed after the completion of an inquiry unless, but must be resumed if, the senior coroner believes there is sufficient reason for resuming it. However, these provisions are intended to cover situations in which the terms of reference of an inquiry will not, or have not, achieved an inquest’s statutory purposes. As I have said, an inquiry held in these circumstances is very likely to have within its terms of reference the coroner’s statutory purposes; accordingly, a coroner would be expected to suspend and not resume his or her investigation in such cases.
Indeed, if the circumstances of the death had been fully investigated by an inquiry, I would have to question the value of resuming the inquest in such a situation, particularly if the coroner did not have access to sensitive material, such as intercept evidence, which had been available to the inquiry.
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I recognise that there is no perfect solution to the issue that Clauses 11 and 12 sought to address, and we accept that the approach set out in these clauses does not command the necessary cross-party support. On that basis, I would ask for support across the Committee for the government amendments. I also invite the Committee to think carefully about whether, in the absence of Clauses 11 and 12, it is not right to accept that the only assured way of ensuring that an Article 2-compliant investigation can proceed, while also protecting highly sensitive material that may be relevant to a determination on the circumstances of a death, is to proceed in those very exceptional cases by way of an inquiry rather than a coroners’ inquest. Indeed, the noble Baroness will forgive me if I do not—I should not—refer to any individual case, outstanding or not.
Baroness Miller of Chilthorne Domer: At this hour, I do not want to detain the Committee for long. However, I want to ask a question so that we may think harder about the matter between now and Report. When the Minister introduced the amendment he spoke of circumstances in which an inquest “cannot”
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Lord Bach: I think that the answer to the noble Baroness’s question is that it would be the relevant Minister. Under our system, matters of national security and other highly sensitive matters of that kind are the responsibility of Ministers. I know that we will come back to this issue.
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