Counter-Terrorism Bill

moved Amendment No. 48: 48: After Clause 73, 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 (ii) the coroner has ordered the disclosure to be made to the coroner alone or (as the case may be) to the coroner and the person appointed as counsel to the inquest or to members of a jury or to any properly interested person.”” (2) 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 dislcosure essential to enable the matters that are required to be ascertained by the inquest to be ascertained.”” (3) 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.”” The noble Baroness said: My Lords, first, I should make it absolutely clear that I am not reopening our discussion in Committee on whether inquests should be held in secret or on any of the other proposals which the Government agreed to withdraw and bring back in a coroners Bill. The amendment deals simply with an issue that was overlooked when the Regulation of Investigatory Powers Act went through in 2000. Although it is a small technical point, it has had huge ramifications first for one family, now for a second family, and for society as a whole. In what I imagine was a drafting error, a small lacuna was left in Section 18, which did not state that a High Court judge, who in all other circumstances listed in that section can see the material in question and come to a conclusion about it, can do so when sitting as a coroner. I will explain why that is such a difficulty. All my amendment seeks to do is to include the ability of a judge to sit as a coroner at an inquest and to hear this evidence, as he does in all other instances when he sits as a judge. I shall briefly recap why this is necessary. If the Minister casts his mind back, he too will remember that, at the outset of the Bill, his colleagues in another place and subsequently here impressed on us all how urgent it was that the secret inquest could be dealt with, not as a general issue but to allow a particular inquest to proceed—the inquest into the death of Azelle Rodney, who was shot by the police on 5 May 2005. It was urgent, as the Government said themselves when they wrote to the Rodneys’ solicitors, Hickman & Rose, on 30 November 2007, promising that they would change the law so that the inquest into Azelle Rodney’s death could resume. When promising this, they stated that they were acutely aware of the urgent need to find a way forward—this was a year ago—because of the immense delay that had already occurred. That need for urgency arose not least because the state has a legal duty to ensure a prompt investigation into a death in such circumstances. This involves holding an inquest as soon as is practicable. As I said in Committee, since that inquest, which has been delayed and delayed, there has been a second case—that of Terry Nicholas, who was shot in 2007. The inquest into that death is not being held for the same reason: that there was intercept evidence, which cannot be disclosed to a coroner or a jury but which is crucial to the case. My amendment would mean that the decision whether to disclose RIPA material at an inquest would be solely judicial. It would have no bearing on the release of any other sensitive material such as the sort that is usually covered in public interest immunity decisions at inquests, about which I know the Government were concerned; it would have a bearing only on RIPA-related material. That is all that would be necessary for this inquest to take place. I turn now to some of the issues covered by the Minister in his reply in Committee. He made several assertions which I do not think are factually or legally correct. He claimed that the amendment would allow the wide disclosure of very sensitive material. I do not think that that is true, because it would allow the disclosure only of RIPA-related material and that would be only when a High Court judge was sitting as a coroner. That judge has to be satisfied that the material is essential in finding out how someone died. It would not necessarily mean that the material would be subject to public disclosure if it was deemed to be too sensitive. A whole series of options are available and are used in inquests, which could be decided by the coroner; for example, imposing reporting restrictions on proceedings, deciding that in the interests of national security certain sections of the proceedings take place in camera or properly interested persons agreeing to confidentiality undertakings. The Minister went on to say that it is unclear how the new clause would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold such an inquest. In fact, under Section 14 of the Coroners Act 1988, coroners can apply for the jurisdiction of an inquest to go to a circuit or a High Court judge. Quite recently, High Court judges have sat as coroners at inquests in two high profile death-in-custody cases, and at the ongoing inquest into the Jean Charles de Menezes case. I agree with the noble Lord, Lord West, that it is absolutely necessary to balance the interests of the family and the public when discussing material that cannot be disclosed. We think that that balance is necessary and must be achieved, which is why I have brought forward this amendment. It is in the family’s interest, but much more crucially in the interest of wider society, that where the state has had a part in the death of someone—in this case, the police shot them—it is essential that such an inquest is heard promptly. 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 second one—and allay any fears that people have that there is some sort of shoot-to-kill policy. It would be very unfortunate if that feeling in any way took legs. We want to avoid that situation. For that reason and for the reason of natural justice to the family, I hope that the Government will see fit to accept this very moderate amendment and move the matter forward. I beg to move.