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What was originally Clause 13 amended Section 18 of RIPA to allow intercept material to be admissible in inquiries in certified investigations. That was a tacit acceptance by the Government that intercept material could and should be made admissible in coronial proceedings. In fact, there is a piecemeal removal of the general bar on the use of intercept material; as the Minister will be aware, such material is admissible in, for example, certain civil proceedings, such as those on control orders.
The fundamental flaw in the Government’s proposal was that there was no principled reason why the removal of the general bar on intercepts at inquests needed to be restricted to a new breed of certified inquests. With my amendments, it would be possible for a judge conducting an investigation to ban or restrict the jury’s or the public’s access to material that would be contrary to the interests of national security. Rule 17 of the Coroners Rules 1984 enables a coroner to direct that the public be excluded from an inquest or any part of an inquest if he considers that it would be in the interests of national security to do so. A judge sitting as a coroner can be appointed to head such an inquest, if it is particularly sensitive, and public interest immunity certificates can be issued if necessary. These powers are maintained in the Bill.
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The recent inquest into the death of Jean Charles de Menezes is a case in point. It involved very sensitive material including details such as the Metropolitan Police’s operational response to the threat posed by suicide bombers—it is hard to think of anything more sensitive—the assistance that the police had from countries such as Israel and the USA in developing it and all sorts of other aspects of undercover and surveillance operations. Despite all that, the inquest went ahead. That was achieved in several ways. A High Court judge was appointed as coroner and was able to consider PII applications by the police in respect of highly confidential policies and documents. Where discussions in open court touched on the contents of any such protected documents, agreements were reached in the absence of the jury and the public about what could be explored. Although some aspects were regarded as too sensitive to be investigated publicly, overall a reasonably fair exploration of the issues was allowed, while national security was protected, as were other policing concerns. Suitable arrangements were made for the protection of witnesses without the need for certification. That inquest went ahead as an inquest, not as an inquiry.
With that recent example in front of the Government, they should be able to see that these amendments are a practical way forward without destroying the tradition of inquests and going for the parallel system of inquiries for such sensitive cases that it looks as though they are attempting to put on the statute book. I beg to move.
Lord Pannick: I support these carefully drafted amendments for all the reasons given by the noble Baroness, Lady Miller, in her powerful speech and for one additional reason. That reason is that new subsections (8B) and (8C) inserted by Amendment 31 contain powerful safeguards to protect intercept evidence from disclosure, save where that is necessary in order to ensure an effective investigation of the death. There is also the additional safeguard of the power for the redaction of material disclosing the method or the means by which the information was obtained. If the Minister considers that these safeguards are inadequate, can he explain why and what other safeguards he considers are needed in this context?
9.15 pm
Baroness Finlay of Llandaff: I am most grateful to the noble Baroness, Lady Miller of Chilthorne Domer, who moved this amendment so ably. I support it. I shall not go over the arguments again, and I am grateful to the noble Lord, Lord Pannick, for having added additional arguments in support. I fear that the Government may say that they want to wait for the outcome from the Chilcot review and that that might be viewed as a way, or used as a way, of avoiding this. I fear that they might say that these amendments somehow pre-empt the findings of the Chilcot review, although I am not sure that they do.
I should like also to probe further a statement that the Minister made in response to one of our amendments. There was an implication that even those secret inquests might go and that there may be a risk that some inquiries could be transferred to become secret inquiries. There is, therefore, an anxiety that hearings may be held behind closed doors in slightly changed circumstances. It would be very helpful if the Minister could provide
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I ask the Minister in particular to clarify when the completion of the Chilcot review is expected and whether it would be possible, if this is a concern of the Government, to put in some caveat that these amendments would be reviewed when the Chilcot review reports, so that they could be time-limited, but that those inquests that are currently on hold could proceed, even if it was decided eventually to reverse the decision that we might make with these amendments.
Lord Alton of Liverpool: I support the amendments that have been so ably moved this evening by the noble Baroness, Lady Miller, and supported by my noble friends Lord Pannick and Lady Finlay. I would like to pursue a point that my noble friend has just made concerning the change from secret inquests to secret inquiries, as she put it. All of us, I think, supported the Government’s deletion of Clause 11; we were very pleased that the Government responded to the concerns that were made at earlier stages of the Bill concerning the whole question of secret inquests. However, is replacing those inquests with secret inquiries not a move that could be said to be less transparent? It will involve no jury and may involve greater secrecy than even the original proposal.
It is fair to say that it was only during the Minister’s remarks last night that we were able to get a clearer picture of what the Government had in mind. He said that in future, in those rare investigations into deaths where an Article 2-compliant inquest cannot take place, because the inquest must be held with a jury and there is sensitive material that is central to the investigation but cannot be publicly disclosed, the Government will consider establishing an inquiry under the Inquiries Act 2005. So the death will be investigated in that way rather than by way of a coroner’s inquest. The Minister also stated that such an inquiry would be established wherever the Secretary of State decided that it was necessary to do so. The Secretary of State will set the terms of reference and decide whom to appoint as the chair of the inquiry. The only safeguard proposed is the Government’s word that they would expect to appoint a High Court judge.
Will the Minister say, when he comes to reply, whether that is Article 2-compliant? Article 2 under the Human Rights Act 1998 requires that, where a death occurs in state custody, or where the death is alleged to have resulted from negligence on the part of state agents, the investigation must be independent, effective, prompt and open to public scrutiny and it must support the participation of the next of kin. It is clear that an inquiry will not be independent. The Government will set the terms of reference. An inquiry will not focus exclusively on the cause of death of an individual; by its nature, its focus must be on matters more generally of public concern. The Government could run into a real difficulty here. I hope that, before the Committee leaves this subject tonight, through the amendments that the noble Baroness, Lady Miller, has placed before us, we will have the chance to explore that question further.
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Baroness Ramsay of Cartvale: It is puzzling, to say the least, to be having to discuss in this Bill amendments to RIPA to allow intercept as evidence in coroners’ courts as proposed in Amendments 30 and 31. It is puzzling because the committee of distinguished privy counsellors, chaired by Sir John Chilcot, comprising my noble and learned friend Lord Archer, Sir Alan Beith MP and the noble Lord, Lord Hurd, reported to the Government in January 2008, which I want to make clear to the noble Baroness, Lady Finlay. They did that after six months of detailed investigation, having taken written and oral evidence from an impressive array of those who know about interception. They reported that nine conditions would have to be met before intercept evidence could be used as evidence in courts.
My right honourable friend the Prime Minister made it clear in the House of Commons in February 2008 that the Government accepted the report in its entirety, including the report's conclusion that if the conditions were not met, intercept as evidence should not be introduced. The intercept as evidence implementation unit—quite a mouthful of a title—has been set up in the Home Office. It has not yet completed its detailed work. Anyone who knows anything about interception and all its complexity of operational and other problems is not surprised that such a task takes time. Anyone who thinks otherwise fails to appreciate the importance and enormity of the problems. Nobody I know has ever been against using intercept as evidence as a matter of principle; the practical problems and dangers of its implementation have always been the problem.
In this context, therefore, I find it baffling that anyone feels that they can—excuse me for saying this—cavalierly barge in and try to use intercepts in coroners’ courts in this way with apparently no regard to the painstaking expert work that has been and is going on to try to allow this to happen without endangering invaluable national assets. I find myself wholly in agreement with the final sentence of a letter that quite a few of us have received from the Mobile Broadband Group, which represents the UK businesses of 02, Orange, T Mobile, Virgin Mobile, Vodafone and 3. The mobile operators form a significant constituent part of the communications service providers—CSPs in the jargon—whose importance is frequently recognised in reports of interception commissioners. The last sentence of the letter states:
“If Intercept as Evidence is to be introduced into any Court (Criminal, Civil or Coroners), it should be done in a comprehensive way, meeting the nine conditions of the Privy Council Review in their totality, including a detailed implementation plan which incorporates safeguarding the critical interests of partners’ legitimate needs”.
I very much agree with everything in that sentence and I therefore think that these amendments should be rejected.
Lord Hart of Chilton: I, too, oppose the amendment. I must declare that for 10 years I was an adviser to the Government, including on issues such as these under discussion this evening. All acknowledge that there is a problem concerning the practical use of intercept evidence. This therefore involves a matter of judgment. For my part, in the limited number of cases involved,
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Lord Kingsland: It would be not only otiose but rather self-indulgent of me to rehearse the arguments so skilfully advanced by the noble Baroness, Lady Miller, in support of this amendment.
Your Lordships will recall that yesterday evening I spoke to Amendment 46, which sought to promote the alternative solution, which was to take the Government’s preferred objective of using the Inquiries Act occasionally to deal with these difficult matters, but to cut down the Secretary of State’s powers under the Act in such a way as to provide a balance between the interests of all parties involved that was fair in all circumstances. The Minister did not give my amendment a very warm welcome.
As a matter of principle, the Opposition would much prefer a solution in the coronial context to one in the context of the Inquiries Act. I entirely agree with the reasons for the question of the noble Lord, Lord Pannick, to the Minister at the end of his remarks. I submit that if the Minister does not accept the amendment of the noble Baroness, Lady Miller, he ought to tell us why it does not provide sufficient safeguards in relation to intercept evidence. We know that, in the de Menezes inquest, the judge—to, I believe, everybody’s satisfaction—produced a balance that was appropriate in all circumstances. I know of no particular security interest that was thought to be compromised. At least I have not heard of any. Not to know is, perhaps, not quite the same as not to have heard. Nevertheless, it is widely accepted that the inquest was handled with discretion and immense competence. If what is in Amendment 30 does not satisfy the Minister’s concerns about the admission of such evidence, what additional ingredients should the amendment have to pass the Minister’s test?
Lord Bach: I thank noble Lords who have spoken in this important debate. The amendments tabled by the noble Baroness, Lady Miller, put forward an alternative solution to holding an inquiry under the Inquiries Act in cases where there is intercept evidence relevant to the circumstances of a death. These amendments seek, instead, to provide for the use of intercept evidence in inquests. In doing so, they would allow for the potentially wide disclosure of intercept material, not only to a High Court judge sitting as a coroner, but—this is the nub of the problem—to jurors and such other interested parties as bereaved families. This creates the potential for public disclosure of intercept material and associated damage, potentially to national security. Such an approach, as my noble friend Lady Ramsay made clear, would undermine the very real need in some circumstances to protect such material, its sources and the capabilities and techniques by which it was obtained, from public disclosure.
While these amendments would, in principle, allow the finder of fact to have access to all the relevant material and thereby conduct an Article 2 ECHR-compliant inquest, they do so by sacrificing what we
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I acknowledge, of course, that it is not necessarily the intention for all intercept material to be fully disclosed. However, in those few cases where this is an issue, it will be impossible to redact intercept material in such a way as to disguise the method or means by which it was obtained. In those cases where it is possible, gists or summaries of any relevant material will already have been provided to the jury and other interested parties at the outset of the investigation.
I am in danger of repeating myself when I say that disclosure of intercept capabilities would have a real and damaging impact on our ability to gather intelligence that is vital to national security and the fight against serious organised crime. The Chilcot review on intercept as evidence has recognised this, which is why the Government are taking forward a detailed, painstaking programme of work—again, as my noble friend described—to ensure that we can meet the tests set out in that review and allow intercept to be used safely in the criminal courts where people’s liberty is at risk, without putting national security itself at risk.
The protections offered in these amendments, which include the possibility of redactions to material relating to the method or means by which the information was obtained, are inadequate to protect the public interest. We recognise the importance of ensuring that bereaved relatives and other properly interested parties should be involved in the conduct of an inquest as far as possible. Indeed, our plans for a new appeals process, bespoke to the coronial system, have been widely welcomed, as have the services outlined in the charter for bereaved people and other measures we have taken to improve the standing of families.
However, we have to strike a balance between the interests of the families, in one or two quite exceptional cases, and the wider public interest where there is material of such sensitivity that is central to the inquest. These amendments do not achieve that balance, which is why we have come forward with the Inquiries Act suggestion that we debated yesterday. The holding of a public inquiry—again, not to be done unless we cannot use the coronial system—would permit the disclosure of intercept material to the chairman, who would be a senior judge, of an inquiry established to examine the circumstances of a person’s death in accordance with the existing provisions in Section 18 of RIPA. It would also permit disclosure to any inquiry panel members and to the counsel to the inquiry, but it would not permit further disclosure.
Thus we would achieve twin objectives. The first would be an Article 2-compliant investigation. In answer to the perfectly proper question of the noble Lord, Lord Alton, our understanding is that inquiries set up under the Inquiries Act 2005 are acknowledged as one way of meeting an investigative obligation under Article 2, in addition to inquests, criminal trials or even criminal proceedings. Inquiries are certainly Article 2-compliant.
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The briefing provided by INQUEST, Liberty and Justice—all of them very fine organisations—recognises the difficulties we face. The briefing states that, under the noble Baroness’s amendments,
- “it will remain possible for a judge conducting an investigation to ban or restrict the jury’s or public’s access to material that would be contrary to the interests of national security”.
I welcome the recognition that we need to protect intercept material. This answers the question asked by the noble Lords, Lord Pannick and Lord Kingsland. The solution put forward is flawed because it does not resolve how to proceed where there is relevant material—relevant to the decider of the facts, which in a coroner’s hearing will almost certainly be the jury—that cannot be disclosed to an inquest because such disclosure would be contrary to the interests of national security.
I appreciate that, under the amendment, a coroner would be able to keep a lot of information of a sensitive nature away from the jury. However, if the information coincided with material that was relevant to the decisions that the jury had to make, he would face the dilemma of either giving them the relevant material and risking the loss of sensitive material, or not giving them the relevant material and not allowing them to judge properly, under Article 2 for example, what the facts of the case were.
If it is accepted that there will be circumstances where intercept evidence cannot be disclosed to a coroner’s jury, it follows that in such cases the jury cannot be the finder of facts, as it would be inappropriate for the jury to give a determination that is not based on all the relevant evidence. If that is so, the logical consequence is that the jury would have to be dispensed with in such cases.
In our view, the only viable alternative to the provisions in what were Clauses 11 and 12 is not a lifting of the bar on the admissibility of intercept evidence at inquests, but is, in those—I repeat, for the third time in my short speech—really rare cases, to establish an inquiry. That is our view, having considered the matter carefully. For those reasons, while I absolutely understand the good intentions behind the amendment that has been so ably moved, I must ask the Committee to reject the amendment and ask the noble Baroness to withdraw it.
Lord Kingsland: Before the noble Baroness responds, would the Minister consider two propositions? The first, with which I am sure he would agree, is that judges are very good at making the kind of decisions to which he referred. I would say to the noble Lord: “Trust the judge”.
Secondly, as a fallback position—and I am not suggesting that this is one we would advance on Report—there may be room for both these solutions to the problem. There may be room for an amendment that advances the possibility that, in certain circumstances, intercept evidence could be used in a traditional coronial context, with appropriate safeguards. However, if it is considered that the security nature of that evidence is such that relevant matters should be withheld from the
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I am thinking on my feet here. If not, what will happen is that the moment there is an issue that involves intercept evidence, the Government will automatically go for an inquiry without thinking hard about whether the matter could be considered under a coronial solution, as it was ably by the de Menezes inquiry. I put these two thoughts to the Minister, in a spirit of trying to produce a creative result from the evening’s discussions.
Lord Bach: I have spent my career trusting judges, and it has nearly always been the right thing to do. Of course, judges are extremely good, and obviously I take the point that a senior judge, in particular, would be experienced. As to the solution that the noble Lord proposes, perhaps I may think about it rather than responding to him tonight. This is a matter on which we want to hear expert opinion in this House, and outside too, so that we come to the right judgment. I think that the Committee knows where we stand at present but I am very grateful to the noble Lord.
Baroness Miller of Chilthorne Domer: I am extremely grateful to all noble Lords who have spoken. There have been a plethora of constructive suggestions that will move us forward towards Report. I am particularly grateful to the noble Lord, Lord Kingsland, who, with his normal forensic ability, got to the heart of the point when he said, absolutely correctly, that the opposition parties are looking for a solution in the coronial context and not one in the inquiries context. I am also grateful to the noble Lord, Lord Alton of Liverpool, for expanding on why we see an immense difference between the two.
I recognise that the noble Baroness, Lady Ramsay of Cartvale, is puzzled as to why I have brought this matter forward. Indeed, I think that she used the word “cavalier”, but I refute that. We discussed this at length during the passage of the Counter-Terrorism Bill. I had meeting after meeting with the noble Lord, Lord West of Spithead, and his final invitation was that we should debate this issue further during the Coroners and Justice Bill. That may have been because he thought that we would be nearer to having the Chilcot review solutions in place by now; however, they are not. I am responding to that invitation because I think that it would have been extraordinary if we had ignored the opportunity offered by this Bill to come back and approach a solution.
The suggestion put forward by the noble Baroness, Lady Finlay—that we could work towards a solution with a sunset clause in the Bill that would come into effect if the Chilcot review came up with anything better—was another constructive idea that we might well want to think about between now and Report. The noble Lord, Lord Pannick, was right: what we are really looking for here are powerful safeguards in relation to evidence that should not be disclosed, as I think the Minister has recognised. We have not debated vetted juries tonight, although that it is something that we could have talked about.
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