Coroners and Justice Bill

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 call the ring of secrecy. This is necessary to protect such sensitive techniques, capabilities and sources. Frankly, that is too high a price to pay in the rare circumstances where this might arise. Why too high a price? Because it could fundamentally undermine and publicly expose those vital capabilities that we all agree are essential to tackling terrorism and fighting serious crime. 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. Secondly, that could be done while managing to safeguard sensitive intercept material and preserving what I have described as the ring of secrecy. 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.