Coroners and Justice Bill

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.]" 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 and the fight against serious and organised crime which would ensue. Simply put, it could undermine the vital need to protect such sensitive material, the sources of that material, the capabilities available and the techniques used to obtain that material. On behalf of the Government, I must emphasise that the potential effects of disclosing any of those things cannot be underestimated and are, in our opinion, too high a price to pay. 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. 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 such as our plans for a new appeals process 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. But we have to strike a balance between the interests of the families, in one or two exceptional cases, and the wider public interest when there is sensitive material that is central to the inquest. The amendments do not achieve that balance. 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 spirit, that his party, which is looking to come into power, should think very long and hard before supporting the amendments that we have been discussing. 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.