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I think it would be entirely wrong if today the House were to make a decision that pre-empted the careful, detailed and sensitive consideration that is going on inside the machinery of government. It is all very well saying that a bit of tweaking here and a bit of tweaking there will satisfy one particular case, because it appears that this campaign revolves around one case, but we all know that one case does not necessarily justify a wholesale change in legislation, especially when a committee of privy counsellors has concluded that conditions must be established. The committee of privy counsellors was not alone. The interception commissioner, who was established precisely to look after the interests of the country, has clearly and emphatically stated that there should be no change in the current situation unless and until the nine conditions are satisfied.
Therefore, I hope that the noble Baroness will reflect on this debate and other debates and withdraw her amendment. Perhaps she will consult her party colleague, Sir Alan Beith, withdraw the amendment and allow the process, taking into account the Chilcot recommendations, to go ahead and not press it to a vote in this House today.
Lord Foulkes of Cumnock: My Lords, perhaps I may say a few words as the one Member of this House who currently sits on the Intelligence and Security Committee, which oversees the work of MI5, MI6, GCHQ and the Defence Intelligence Staff. We are, by the very nature of our work, permitted to see intercept in connection with these inquiries. I have come to the conclusion, as have other members of the committee-Sir Alan Beith served with great distinction on it for a long time-that it would jeopardise very sensitive intelligence sources if we passed this amendment today. I am not overdramatising when I say that people's lives could be put at risk.
The noble Lord, Lord Pannick, said that there is already one example of where such evidence can be used, although it is clearly a very limited one. When he intervened, it made me think even more about my concern that this is the thin end of the wedge. The noble Baroness, Lady Miller, is moving this amendment now and I have no doubt that next year she will push further forward, but I repeat that I think it would jeopardise our intelligence sources.
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Strangely, noble Lords have heard almost in succession three Scots voices. We Scots are very cautious about taking this kind of dramatic step. Ironically-I hope that the Minister's reply will confirm my understanding-these amendments would apply only to England and Wales. Therefore, they would not apply in Scotland, which raises an interesting and difficult anomaly.
As my noble friends have said, Chilcot, with representatives from all parties, was very cautious about the recommendation. The noble Baroness, Lady Miller, said that it recommended that intercept should be used as evidence. It did not. It put huge qualifications on it-nine, as my noble friend Lady Ramsay said-and the noble Baroness, Lady Miller, did not even refer to them. She brushed them aside as if they were of no consequence, yet they are absolutely vital and crucial. If they are able to be satisfied, the intelligence services would go along with it but, until then, it is quite irresponsible to press ahead with this amendment.
I do not say this in relation to anyone present, of course, but when someone is a government Minister they realise the importance of these kinds of safeguards but, once they are free of the office, they somehow take a different view. We need to recognise that Ministers and heads of the intelligence services have day-to-day responsibility and we should be very careful about ignoring their advice.
The noble and learned Lord, Lord Lloyd of Berwick, asked a very relevant question about when the implementation group would report. No doubt the Minister may be able to deal with that in his reply. I am sure that the noble and learned Lord, Lord Lloyd, and others would agree that we should not prejudge and pre-empt the work of that implementation group. If we were to pass this amendment today, we would be doing just that, and I think it would be a very unwise course of action.
Lord Henley: My Lords, perhaps the noble Lord, Lord Foulkes, would allow an Englishman to comment on this issue. We have debated this matter on many occasions; as the noble Baroness, Lady Ramsay, made clear and as the noble Lord, Lord Robertson, said, the same participants have appeared again and again. I am new to this debate as I am taking over from my late friend Lord Kingsland. I hope that I shall take much the same line.
This issue has caused considerable unease in the House and elsewhere. As the Minister will be the first to admit when he comes to reply, the Government have clearly recognised that unease and have drawn back from some of their earlier and, dare I say, more offensive proposals. If the noble Lord remembers, the original Clauses 11 and 12, which swallowed up a great deal of time in another place, were then dropped without so much as a squeak by the Government when they realised that they would not be able to push them through your Lordships' House. In a Written Statement which the noble Lord will remember, which was slipped out by the Lord Chancellor, we learnt that in difficult cases the Government would instead make use of the Inquiries Act 2005.
In Committee, my late friend made it clear that he was still uneasy with those proposals and suggested the minimum changes that would need to be made to
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As a matter of principle, the Opposition would much prefer a solution based in the coronial context than one based in the context of the Inquiries Act. The Government want to use the Inquiries Act to fulfil the obligation to have a process to examine deaths at the hands of the state that cannot currently be dealt with by an inquest because of their refusal to budge on allowing certain types of information to be heard at an inquest. As the noble Baroness, Lady Miller, explained, the information and the methods by which it was collected fall under RIPA. We are very sympathetic to the noble Baroness's amendments that allow RIPA material to be part of an inquest and create special provisions to protect the national interest in matters of true national security.
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When we debated the Counter-Terrorism Bill, we had a similar debate. My noble friend Lady Neville-Jones expressed the support of the Opposition for allowing intercept evidence to be admissible in inquests. She said:
"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".-[Official Report, 24/11/08; col. 1298.].
The Government have cast about for different solutions to the problem. They have moved by degrees, but have yet to come up with anything that commands widespread support throughout the House or elsewhere. We all know that groups such as INQUEST, Liberty and JUSTICE have thrown their weight behind the case for allowing intercept evidence to be heard in inquests. We do not wish to delay justice any longer. I do not know what the noble Baroness intends to do with her amendment or how the Government intend to respond to it. We will listen carefully to the Government and to the noble Baroness's response, and if she is minded to test the opinion of the House, it is possible, depending on what the Government have to say, that we will support her.
Lord Harris of Haringey: My Lords, we should be conscious that there are a number of different strands in this debate. There is the entirely right and proper
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The reality is that it would be much more complicated and difficult than that. That is why the Chilcot committee was set up to look at the practical issues involved. Its conclusion was to highlight a series of things that have to be done before, with safety, we could allow this principle to go forward. The Chilcot committee is still working on whether there are things that could be done to safeguard security and the ways in which things are obtained and to avoid a situation in which so much material is generated in evidential quantities that in practice less intelligence would be gathered on serious crime and terrorists. It would be premature for any change to be made that pre-empts that work. The seriousness of this issue is why the Chilcot committee was set up. It would be wholly unfortunate to pre-empt what it is doing, as with all due respect both strands of the argument in favour of this amendment are doing. Yes, we have to find a way of resolving these appalling delays for individual families who would like a resolution of the matters that concern them, but that must be separate. We must avoid prejudicing a much wider and important issue of public policy.
Lord Bach: My Lords, I thank all noble Lords who have taken part in this excellent debate on what is an extremely serious subject, as has been appreciated on all sides.
The Government's amendments in the group follow on directly from our debate in Committee on 9 June, when we considered amendments tabled by the late Lord Kingsland that dealt with the relationship between a coroner's investigation and an inquiry established under the Inquiries Act to investigate the circumstances of the same death.
The Committee agreed government amendments to remove what were then Clauses 11 and 12, which sought to provide a mechanism for dealing with the very rare cases in which investigations into deaths must, as a matter of law, be held with a jury but in which there is sensitive material that may be central to the inquest but that should not be made public, including to the jury. In such cases, I indicated that the Government would instead consider establishing an inquiry under the Inquiries Act, thereby enabling an Article 2 complaint investigation to proceed.
It is fair to say, as we have heard in this debate, that there was and is some unease about our approach. The late Lord Kingsland put it this way:
"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".-[Official Report, 9/6/09; col. 624.]
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To address those concerns, noble Lords opposite proposed amendments to the Inquiries Act, which among other things sought to ensure that an inquiry established to investigate the circumstances of a person's death was chaired by a senior judge and to restrict the Secretary of State's power to vary the terms of reference of such an inquiry.
We thought very carefully about the points made by both the late Lord Kingsland and the noble Lord, Lord Pannick, in that debate, and the government amendments that I intend to move later today will, I trust, provide some reassurance. As I indicated in Committee, it was always our expectation that any inquiry established to investigate a person's death would be chaired by a senior judge, in much the same way that what was Clause 11 provided for a High Court judge to preside at a certified inquest. Moreover, we also expect the terms of reference for any such inquiry to include, as a minimum, the matters to be ascertained by a coroner, as set out in Clause 5.
These government amendments will give statutory force to our stated intentions. Under the amendments, the duty on a coroner to suspend an investigation pending the outcome of an inquiry would bite only where the inquiry was chaired by a High Court judge or a more senior judge. Moreover, where a coroner has suspended the investigation, the terms of reference of the inquiry must include, as an irreducible minimum, the matters to be ascertained, as set out in Clause 5. I hope that the amendments will reassure the House on that point.
The amendments tabled by the noble Baroness, Lady Miller, come at the same fundamental issue from a different angle. They offer two alternative solutions, and I will address each of them in turn. Her Amendments 4, 5 and 122 put forward an alternative solution to holding an inquiry under the Inquiries Act in cases in which there is intercept evidence of central relevance to the circumstances of a death. These amendments seek to provide for the admissibility of intercept evidence in inquests by making amendments to the Regulation of Investigatory Powers Act 2000. As we have been told, we have debated this issue on a number of occasions, both in the context of this Bill and when considering the Counter-Terrorism Bill during the last Session.
These amendments replicate those tabled in Committee, and the arguments we have heard-there is no harm in that at all-are clearly well rehearsed and familiar to us. It is clear that there is a shared appreciation all around the House that a very real problem exists and that we need to find a solution to that problem. But it is also clear that we have yet to find a consensus.
Our position, as the Government, on the use of intercept evidence in inquests has not changed. Allowing the use of sensitive intercept material as evidence at inquests allows a potentially very wide disclosure of this material, not just to a High Court judge who may be sitting as a coroner but to the jurors, the bereaved families, other interested parties and to the public at large. Even if the public were excluded, this would still be problematic.
We are not persuaded that such widespread disclosure of intercepted material, even if it was confined in the way suggested, is worth the real risk to national security
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I have previously acknowledged, and I accept, that it is not necessarily the intention of these amendments for all intercept material to be fully disclosed. However, in those very 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. Disclosure of intercept capabilities would clearly have a very real and damaging effect on our ability to gather intelligence that is vital to national security and the fight against serious organised crime.
Many distinguished speakers in this debate have referred to the Chilcot review, which, on intercept as evidence, has recognised the dangers of disclosing such material. That is why the Government are taking forward a detailed programme of work to ensure that we can meet the tests set out in that review and allow intercept to be used safely in the criminal courts without putting national security at risk. As I understand it-this came up in the debate-the intention is to provide Parliament with a final report from the Chilcot review in the next few weeks.
The protections offered in these amendments, which include only the possibility of redactions to material relating to the method or means by which the information was obtained, are, in our opinion, wholly inadequate to protect the public interest. Moreover, if we were able to identify a way to use intercept evidence safely in criminal trials, there is not an automatic read-across to inquests. I say that because in a criminal trial the prosecution has the option of discontinuing the prosecution if there is a risk of disclosure of sensitive material or capabilities. That option does not exist in the same way in an inquest which has to be held. We argue that these amendments create the potential for public disclosure of all types of intercept material, including the sensitive techniques, capabilities and sources by which it was obtained, thereby undermining the very real need to protect this material in the public interest.
At present-and this will continue-in the reformed system, coroners and other interested parties are provided, wherever possible, with the gist or a summary of any relevant sensitive material at the outset of the investigation. This material can also be shared with the jury. The amendment does not resolve the problem for those very rare cases where intercept material is absolutely central to the investigation, but which it is impossible to gist or redact in such as way as to disguise the method or means by which it was obtained.
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Of course, we recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in the conduct of an inquest as far as possible. Ensuring greater participation in the coronial process for the families of bereaved persons is at the heart of these reforms. Proposals
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By way of contrast, the holding of an inquiry would permit, in exceptional circumstances, the disclosure of intercept material to the chairman 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. It would permit the participation of families through counsel to the inquiry to the extent necessary to safeguard their interests. As a result, it would be possible to achieve our twin objectives of an Article 2-compliant investigation while safeguarding sensitive intercept material and preserving what has been described as the ring of secrecy.
Briefings previously provided on this issue by the notable organisations INQUEST, Liberty and JUSTICE have recognised the difficulties that we face, stating that under these 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. However, the solution put forward here is flawed, since it does not resolve the central matter of how to proceed when the investigations must, as a matter of law, be held with a jury, but there is sensitive material which may be central to the inquest and which should not be made public-even to the jury-in the interests of national security.
If it is accepted that there will be circumstances where intercept evidence cannot be disclosed to a coroner's jury, it necessarily follows that, in such cases, the jury cannot be the finder of facts as it would be inappropriate and wrong for the jury to give a determination that is not based on all the relevant evidence. I suggest to the House that the logical consequence is that the jury would have to be dispensed with in such cases in any event.
Having thought about this matter at great length, the only viable way to conduct a full, thorough and Article 2-compliant investigation into deaths where sensitive intercept evidence cannot be made available to the inquest is not by a blanket lifting of the bar on the admissibility of intercept evidence at inquests, which would put capabilities at risk, but by establishing an inquiry. Therefore, when the time comes, I ask the House to reject the amendments in the name of the noble Baroness.
I pray in aid that we have heard speeches in this debate from those who have great knowledge in various and different ways about how significant and serious this matter is-what the real effect might be should intercept evidence be allowed into our hearings too easily. I respectfully say to the noble Lord, in a friendly
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Like the Government's amendments, Amendments 20, 24, 25 and 26 touch on the relationship between a coroner's investigation and an inquiry into the same death. It remains the view of the Government that 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. To do otherwise would be illogical and a waste of resources. To have two separate investigations into the same death going on at the same time under different regimes would lead to confusion and inconsistency, as well as possibly causing added intrusion into the private grief of the family for no obvious benefit.
The Bill provides that an investigation may not be resumed after the completion of an inquiry unless-but must be resumed if-the senior coroner believes that there is sufficient reason for resuming it. We believe that these provisions are sufficient, as they are intended to cover situations where the terms of reference of an inquiry will not, or have not, achieved an inquest's statutory purposes.
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 an event, particularly if the coroner would not have access to sensitive material, such as intercept evidence, which had been available to the inquiry. I would have thought that the concerns expressed around the House about delays in complex cases, if not in inquests generally, would be sufficient reason for not having two similar types of inquiry into the same case.
I have spoken long enough in answering this debate. I would ask the House to support the government amendments when they are moved in due course and, for the reasons that I have tried to outline, to oppose the other amendments.
Baroness Miller of Chilthorne Domer: My Lords, it has certainly been a very interesting debate. I think that we all share certain concerns, one of which is for the security of this country-I do not think that that is in question. However, what is in question is the way of arriving at a solution that not only provides for modernisation of the coroners system-and which, as I mentioned, recognises that the use of intercept will necessarily become an ever greater part of the evidence that is produced-but has at its very heart an independent coroners and inquest service, and not a parallel system.
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