Counter-Terrorism Bill

– in the House of Lords at 3:07 pm on 24th November 2008.

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Votes in this debate

Moved accordingly, and, on Question, Motion agreed to.

commons amendments and Reasons

[The page and line references are to Bill 65 as first printed for the Lords.]

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I beg to move that the House do not insist on its Amendment No. 2, to which the Commons have disagreed for their reason 2A. Amendment No. 2 was considered by the other place on 19 November. The other place disagreed with the amendment on the grounds of financial privilege. As your Lordships will be aware, sections 7.175 and 7.176 of the Companion to the Standing Orders make it clear the Lords do not insist on their amendment when the Commons have disagreed on these grounds. Given that, I would ask that the House do not insist on its Amendment No. 2.

Moved, That the House do not insist on its Amendment No. 2, to which the Commons have disagreed for their reason 2A.—(Lord West of Spithead.)

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, I find this curiouser and curiouser. The amendment which we put forward when the House last considered this matter proposed that the discussion on the DNA database should be put on a statutory basis. We asked the Minister and Parliament to consider how people would be able to get their names off the database and understand how and why they got on to it in the first place. The Commons have now raised this as a privilege matter.

I do not know what fight the Minister put up to deter that, but my understanding of privilege amendments is that they arise when a provision would lead to a major increase in cost. The DNA database cost this country £2.5 million in 2008. We have simply proposed that anyone who thinks they may be on the database should be able to write to the person holding the database to ask why their name is on it and to require a response. If their name came off the database it would reduce the cost of the database. I cannot see that it would cost the country much more to answer those questions than the amount currently being spent. It would also minimise the problem of holding people's information on a database.

The problem here, which the legislation increases, is the holding of people's DNA information. As we discussed last time, why should the Government hold virtually in perpetuity the details of what makes up innocent people who are guilty of no crime and who have been found not to be guilty of any crime? How this amendment could meet the general tenor required of a privilege amendment simply defeats me. I very much hope that the Minister will go further in his reply to this debate than he did when he rejected our amendment and tell us what the major problem is. People should not be on this database. It seems completely fatuous to say that the problem with the amendment is cost. Finding out why the information is being held will cost about the same as a first-class stamp and require just a brief examination. That is a very poor reason for the Commons not to accept this amendment.

In reconstructing the amendment we have tried to meet one of the problems raised when we previously considered the proposal—that it should be possible to maintain information for security purposes and there should be no obligation to reply to questions relating to it. Our amendment now appropriately addresses that problem and leaves the matter in the Government's hands.

We are seeking to ensure that there is a proper debate as soon as possible on the current state and future direction of the DNA database. That is what our amendment amounts to. We want consistent and transparent guidelines to be established to govern the retention of DNA; increased public awareness; and an opportunity for the recommendations of various governmental and non-governmental bodies to be considered and implemented. The Minister has echoed those aims. He has never said that there should not be such a debate. In fact, although he put down his marker by saying he does not think there should be statutory guidelines, I think he has said that he would welcome such a debate. He certainly agreed in Committee that there was a need for a wider debate given the number of organisations campaigning for one.

It is extremely difficult to believe that anyone thinks there should not be a proper discussion. I very much doubt that anyone in this country who has had contact with the police and had their DNA taken would understand why they were on a database. A number of people have written to me since the previous debate to say, as I have said before, that they had no idea that their DNA would not be destroyed after its retention and their incorporation in the database were found unnecessary.

The Human Genetics Commission, a body explicitly set up to advise the Government on matters such as this, said that it feels,

"strongly that the forensic use of DNA and genetic information has not yet been subject to significant public debate".

Those views are echoed by other non-government organisations. Many bodies have already established the many areas that need to be covered by such a debate. Questions about whose DNA should be taken, how long it should be kept for, how it should be used and who it should be shared with, all need to be properly answered.

The database has increased incrementally and the Government give all sorts of reasons, including counter-terrorism reasons, why the liberty of individuals should be compromised. However, they seem at variance even with themselves about the answer to the questions we have posed. As I highlighted in Committee, the National DNA Database Ethics Group, the Government's own body set up to oversee the database, has in all its recommendations drawn attention to the fact that what is happening is not what anybody would have expected. It considers that the current guidelines on retention are not proportionate and do not mesh with data protection and human rights legislation.

There is similarly agreement between all the advisory bodies, and other bodies, that there must be more transparency and public awareness of the situation. The police DNA database is currently subject to data protection rules, as the Information Commissioner's website makes clear. Individuals can ask to see the information about them held on computer and in some paper records. If an individual wants to exercise their subject access right they should write to the person or organisation which they believe is processing the data, not to the Information Commissioner.

As the Minister said in Committee, the guidelines are on the ACPO website. However, the information is clearly not reaching people. The guidelines are buried in appendix 2 of a document that is almost impossible to find unless you know exactly where to look. There are frequent examples of people attempting to remove their information from the database and being appalled to discover the exceptional circumstances that they must prove before that is possible. In Committee I cited the only example given on the ACPO website outlining how someone could get off the database: if they were suspected of murder but it was eventually found that no crime had been committed. As things stand, that is the only way in which one can be removed.

All these concerns are neatly summed up in a recommendation of the Home Affairs Select Committee. In its fifth report this year, it said:

"In order to facilitate a full debate and an appropriate level of Parliamentary scrutiny we recommend that ... the Government introduce primary legislation"—

I underline primary—

"to replace the current regulatory framework for the National DNA Database. We recommend that this legislation"—

I note legislation—

"provide for a more accessible mechanism by which individuals can challenge the decision to retain their records on the Database".

It went on:

"The Government should reconsider the ways in which National DNA database information is collected, handled, stored and transferred. In particular we recommend that in order to minimise the data held, the Home Office and the police should review the identifiers used for samples and the policy of retaining samples".

Statutory guidelines, which are what the amendment asks for, would ensure that the Government's policy on DNA receives the attention it deserves and also ensure consistency. The current situation means that there is a postcode lottery in whether innocent people can have their information removed from the database or even obtain information about whether their information is on it. Given the ongoing debates on whether the database is already too large, that is unacceptable. The legislation increases the possibility of that happening.

The Minister did not quite make clear the effect of the Commons' response. They have decided that our amendment constitutes potentially significant spending commitments, but I find it hard to understand where all this money will be spent. I hope that the Minister will take this last opportunity to clarify the Government's intentions in this area. Will they implement any of their advisory bodies' recommendations, and when can we expect the next review of the guidelines? A wealth of information and opinion is available from governmental and non-governmental bodies, and the same conclusion has been reached: there need to be proper debate and proper statutory guidelines relating to the information held on innocent citizens of this country. We need to open up that debate again. We opened it during the passage of this legislation because of the expectation that there will be an increase in the amount of such information. I hope very much that the Minister will be able to give us a more satisfactory reply than appears to have come from the other place.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 3:15 pm, 24th November 2008

My Lords, I had not intended to speak to this Motion but I confess that I am amazed at the reason given by the other place for opposing our amendment. First, can the noble Lord give us an idea of the cost of implementing the amendment? I find it hard to conceive of almost any amendment passed by this House to criminal legislation or matters of that kind that does not involve some form of trivial expense.

Secondly, have the Government really given thought to where this course will take them? In the Constitution Committee, we have learnt that citizens of this country are 15 times more likely to be on the national DNA database than are citizens in America. In this country, more than 7 per cent of the population is on it, compared with 0.5 per cent of the population in America.

If we are really to be told that the Government should not be required to spend a pittance in considering whether people should be taken off the database, the simple and only answer—I suspect that it is also the best answer—is that anyone who has not been committed of a criminal offence should be automatically removed. That would save money and then the other place would have to give thought to the effect of its point, rather than take this rather remarkable monetary line.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Crossbench

My Lords, on a point of detail, if the criterion were whether someone had been convicted of an offence, that would mean that it would not be possible to use DNA for intelligence purposes.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, I have every sympathy for noble Lords who wish to see the Motion challenged but, with the greatest respect, I do not think that they come within a mile of meeting the point. As I understand it, the point is contained in the Parliament Act 1911 and relates to the House of Commons certifying something as a matter of privilege, which it becomes if it involves actual expenditure or possible expenditure. Therefore, the issue is not whether the House of Commons is correct in that matter but whether the Speaker of the House of Commons has certified to that effect. If that has happened, it seems to me that, for all its merits, eloquence and, indeed, sincerity, this discussion is irrelevant.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, perhaps I may make it plain that I accept what the noble Lord says. I am not suggesting that this House should fly in the face of the House of Commons reason; I merely seek to point out that I think that we are faced with a remarkable attitude.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, I respect that.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, we certainly agreed with the amendment when we debated it previously but, from what noble Lords are saying, there does not seem to be much room for manoeuvre for this House, given the objections that the other place has registered. It seems to create a dangerous precedent. The Government have not chosen to advance any arguments against the amendment; they have simply used this financial privilege mechanism, even though the amount of money that is being talked about is very small. If this House rolls over and accepts the situation, we could be laying ourselves open to dozens of amendments coming back with this reason. I do not feel that that would treat your Lordships' House with sufficient regard. I hope that the Minister will explain exactly what the costs will be, why they are so high and why this is such a consideration when all the arguments advanced by the noble Baroness, Lady Hanham, are important ones, which the Government should answer.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, undoubtedly the noble Lord, Lord Elystan-Morgan, is correct: if the Speaker attaches a privilege statement to a Bill, there is nothing that this House can do about it. However, this House is entitled to express its concern that an amendment that it passed has not had the consideration that it should have had in the elected House.

It seems strange that this unelected House should be more concerned about individual freedom and the information that is held on the private subject than the elected House of Commons is. I would expect the House of Commons to express great concern, as the Select Committee has. I would expect that it would want to ensure that information held by the police and the security services is essential and that information should not be held in respect of people who are completely innocent of any crime. That is what concerns me about the attitude of the Commons.

The elected House of Commons exists, among other reasons, to protect people's individual freedoms and to see that the state does not go beyond reasonableness in holding information about them. I hope that the Minister will tell us that the Government are concerned about this. I hope that their failure to accept the amendment is only a holding operation and that they are as concerned about individual freedom and the protection of the citizen as we are. I hope that they intend to examine the matter in depth and, in due course, to bring forward legislation to protect the citizen from having unnecessary information held by the police, the security services and, perhaps, a whole range of other organisations.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, as the noble Baroness, Lady Hanham, said, I am on record as saying—and I firmly believe—that there is need for a wide debate on DNA. In this country, there is a wide range of views. Some people think that anybody who has not been convicted of a crime should not be on the database, whereas a large number of people think that 100 per cent of the population should be on it. This answers the point of the noble Viscount, Lord Bledisloe. There needs to be a debate about this, because all those points of view are valid. I have talked to government colleagues about this and I am not quite clear exactly how it will be done, although I certainly do not think that it will be done in this context.

The noble Baroness, Lady Miller, said that there had been no exposure of the arguments. However, in this place and the other place there was considerable exposure of the arguments. To answer the noble Lord, Lord Stoddart, if he reads Hansard he will see that there was considerable debate in the other place about this issue. However, as far as I understand it—I know that I am new to this House—it is an established convention not to challenge the reasons why the other place has disagreed to an amendment when it does so on the ground of financial privilege. I understand that that is what is done. Therefore, I ask the House not to insist on its Amendment No. 2.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 3:30 pm, 24th November 2008

My Lords, has the Speaker certified in accordance with the terms and procedures of the 1911 Act to which the noble Lord, Lord Elystan-Morgan, referred?

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, as I understand it, it is not necessary to do that—if the reason given is privilege, it is not necessary to go through the procedures outlined by the noble Lord. The Companion states that the Commons,

"add words to the effect that the Commons do not offer any further reason, trusting that the reason given may be deemed sufficient. In such cases the Lords do not insist on their amendment. But they may offer amendments in lieu of amendments which have been disagreed to by the Commons on the ground of privilege".

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, that is not the most compelling argument that I can think of. I am as sure as I can be—it is a long time since my student days—that the Act itself refers to certification by the Speaker of the House of Commons. If that is so, surely that is not a procedure that can be overlooked, but I may be corrected on that point.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I am advised that the 1911 Act is specifically to do with money Bills. Having said that, I realise that the reason given for privilege is precisely because it is a financial privilege. I hear what the noble Lord says, but I am informed that we are acting in accordance with the proper procedures.

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, I am not about to challenge that. It has been my understanding all along that, if privilege came forward, I would be unable to test the opinion of the House, which, I am bound to say, I would have been tempted to do again. I cannot do that today and I accept that that is what the Companion says. However, like other noble Lords, I find this unsatisfactory, even more so when the reasons for the privilege are not really spelt out to us. The noble Lord has just sat down without giving any reason from the other place as to what lies behind privilege being put on the amendment. I know only because I happen to be told, and not by Ministers, that the reason was that the amendment would potentially increase the cost enormously. On the day that the Pre-Budget Statement is being made, as this country goes into debt in an enormous way, I find that rather hollow.

I can do no more about that. I simply say to the Minister that this debate will go on. I hope that there will be guidelines and that the Government will understand that the guidelines now need to be statutory—underpinned by legislation. The noble Lord says that he does not see how debate can take place. Draft legislation would go out to all those interested, which would give the opportunity for views to be heard and then an opportunity for Parliament to consider the matter again. I can say no more on the subject today, but we will certainly ensure that it comes back to this House in due course. I regret that the other place has moved in the way it has.

On Question, Motion agreed to.

Motion B

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I beg to move that the House do not insist on its Amendment No. 3, to which the Commons have disagreed for their reason 3A; that the House do not insist on its Amendment No. 15 and do agree with the Commons in the Amendments Nos. 15A to 15C in lieu; and do agree with the Commons in their Amendment No. 115A as an amendment consequential on Lords Amendment No. 115.

Amendment No. 3 adds into the Bill a meaningless declaratory clause that has no legal effect. Amendment No. 15 removes what was Clause 33 of the Bill when it came from the other place. This clause contained minor amendments to the existing pre-charge detention scheme in Schedule 8 to the Terrorism Act 2000 that are unrelated to any extension of pre-charge detention beyond 28 days. What was Clause 33 was inadvertently removed in Committee in this House. Commons Amendments Nos. 15A, 15B and 15C are in lieu of Lords Amendment No. 15 and simply move the replacement provisions for what was Clause 33 to a more appropriate place in the Bill and make necessary consequential amendments. Amendment No. 115 removed Schedule 2, which was part of the reserve power to extend pre-charge detention. The other place agreed to that amendment. However, Amendment No. 115A is necessary to make a consequential amendment as a result of the removal of the schedule.

Moved, That the House do not insist on its Amendment No. 3, to which the Commons have disagreed for their reason 3A; that the House do not insist on its Amendment No. 15 and do agree with the Commons in the Amendments Nos. 15A to 15C in lieu; and do agree with the Commons in their Amendment No. 115A as an amendment consequential on Lords Amendment No. 115.—(Lord West of Spithead.)

On Question, Motion agreed to.

Motion C

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I beg to move that this House do not insist on its Amendments Nos. 106 and 133, to which the Commons have disagreed for their reasons 106A and 133A.

As noble Lords are aware, we share a common desire to ensure that a coroner's inquests are completed as soon as possible so that the families of the bereaved can get some sort of closure. We remain committed to finding a way of ensuring that such inquests are Article 2 compliant and that bereaved families and other interested parties are involved to the extent necessary to safeguard their legitimate interests and to properly understand the circumstances of the death of the individual. Against this, we need to ensure that sensitive material is properly protected. This is because disclosure could damage national security or place others at risk. Amendments Nos. 106 and 133, made by this House on Report, would mean that sensitive material could be disclosed to members of the public, and for that reason I ask that the House do not insist on these amendments.

Moved, That this House do not insist on its Amendments Nos. 106 and 133, to which the Commons have disagreed for their reasons 106A and 133A. —(Lord West of Spithead.)

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

Amendment C1, as an amendment to the Motion, at end insert "but do propose Amendments Nos. 106B and 133B in lieu:

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- (a) the coroner alone; or(b) the coroner and, if he is satisfied that the disclosure will not prejudice national security, the person appointed as counsel to the inquest or to members of a jury or to any properly interested person; or(c) the coroner and, if he is satisfied that it is necessary to avoid prejudice to national security, in redacted form to the person appointed as counsel to the inquest or to members of a jury or to any properly interested person."

(2) In that section, 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 disclosure essential to enable the matters that are required to be ascertained by the inquest to be ascertained."

(3) In that section, 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."

Line 6, after second "to" insert "inquests and"

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, the Minister has summed up the issue. This amendment addresses the rights of families and society that an inquest be held within a reasonable time. The UK has been proud to fulfil that right since long before the Human Rights Act existed. As the noble Baroness, Lady Stern, reminded us on Report:

"The obligation under Article 2 of the European Convention on Human Rights to have a prompt inquiry into a death at the hands of an agent of the state is a heavy one. It is a vital part of the state's accountability to its citizens".—[Hansard, 11/11/08; col. 600.]

I remind the House of the urgent need for this amendment. It has been highlighted by two cases in particular, one of which has been outstanding for three and a half years, apparently due to the fact that the coroner might be faced with sensitive intercept material. We also heard about the work programme dealing with the outcome of the Chilcot review and it seems that any comprehensive solution to the use of intercept material evidence is some way off. In the mean time, these inquests must be held or we will simply not be Article 2 compliant, nor doing right by the families of these people and society as a whole. The amendment is the solution.

Since we last debated this issue in your Lordships' House, it has been the subject of an especially well informed and interesting debate in another place. Richard Shepherd MP there said that,

"there is a wider public interest, which is that everyone should be assured that the processes are above board and clear. We all have an interest in an examination of the facts surrounding the death. In arguing the case for national security, the Minister is effectively saying that he is unable to give us any understanding or take us into any confidence as to how conclusions in such cases are reached or whether they are justifiable. That is the dilemma that we all face in this society. Our uncertainties about those who make judgments on these issues make some of us extremely cautious about permitting secrecy of that nature".—[Hansard, Commons, 19/11/08; col. 276.]

That sums up the dilemma very well.

Those honourable and right honourable Members who contributed to the debate in the other place made some very helpful points which I have today incorporated into my original amendment. In particular, the contribution of the right honourable Mr Douglas Hogg MP was very valuable. He has had the experience of being responsible for GCHQ for a number of years. He said that the amendment, which he strongly supported, would be further improved if it was amended to the effect that the disclosure would not be injurious to the national interest, a point supported by my friend David Heath, who felt that further refinement is required. That is what we have done.

Indeed, the Minister himself, the noble Lord, Lord West of Spithead, said on Report that:

"Disclosure of intercept capabilities would have a real and damaging impact on our ability to gather the intelligence that is vital to our national security".—[Hansard, 11/11/08; col. 602.]

In response to this, we have added proposed new paragraph (d)(ii)(a), (b) and (c), which is a graded disclosure menu from which the judge sitting as a coroner can choose. The Government no longer rely on the reason for rejecting this—that there is no mechanism to appoint a judge as a coroner—which the Minister originally claimed in this House. We corrected the record here but it was repeated in the other place by the Minister, Vernon Coaker. I therefore put on record again that under Section 14 of the Coroners Act 1988 coroners can apply for the jurisdiction of an inquest to go to a circuit or High Court judge. I remind the House that a judge is sitting on the ongoing inquest into the Jean Charles de Menezes case. We can dispose of that government objection and it then comes down to the national security issue. We accept that there are strong reasons for dealing with the issue of national security and our amendment now meets those concerns.

In the interests of speeding up these inquests, which the Government will have to do, they will not need to invent a whole new mechanism. I hope that they will listen to the wise words of so many in the other place, which were summed up by Mr Edward Garnier when he said:

"There are practical solutions that enable us to comply as best we can with article 2 and to allow the bereaved to have the necessary information to understand why their loved ones were killed or died. There is sufficient goodwill across this House and between the two Chambers of Parliament to enable us to arrive at a sensible solution".—[Hansard, Commons, 19/11/08; col. 289.]

That is what I am asking for today.

The Government must trust the judges. If they accept the amendment, that is what they will be doing. If they fail to accept the amendment, they are saying that they do not trust the judges, and that is a very serious state of affairs. If they feel that the amendment could be further improved—that it has technical flaws or is grammatically imperfect—they have time to address that when they take it back to another place. What cannot continue is a situation where inquests such as those now outstanding run for more than three years.

We accept that there is a balance between the right of the bereaved in society to know why somebody has been killed or has died at the hands of the state, and the need to maintain a level of confidentiality. We accept that our original amendment did not emphasise sufficiently the issue of national security. However, I believe that the amendment now fully meets Commons concerns that sensitive material should not be disclosed to the public, while requiring that inquests be held in a timely manner. I beg to move.

Moved, Amendment C1, as an amendment to the Motion, at end insert "but do propose Amendments Nos. 106B and 133B in lieu".—(Baroness Miller of Chilthorne Domer.)

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I support Amendments Nos. 106B and 133B, tabled in lieu of Amendments Nos. 106 and 133. If, as the noble Baroness, Lady Miller, said, there were deficiencies in the previous amendment as regards the national security interest, it seems to these Benches that they have now been corrected with the detailed and specific amendment that replaces the original one. It does not seem that there is any risk of national security being prejudiced by the acceptance of the new amendments. In our view, Amendment No. 106B accommodates the concerns expressed in the other place.

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.

The Minister, and the Minister of State for Policing, Crime and Security in the other place, said that the Government will bring forward proposals to address these issues in the coroners Bill in the next Session. However, in outlining the proposals, the Minister of State said that the proposed power of the Secretary of State to issue a certificate requiring an inquest to be held without a jury will not necessarily allow intercept evidence to be admitted. It does not seem that we can rely on forthcoming legislation to accomplish what the amendment seeks to do. The Government have withheld their assent to the proposition that, in this legislation, the point will be accommodated.

We cannot wait for—or rely on—the Government to act. From these Benches, I say that now that the Government's objections to the previous amendment have been met, it will be very disappointing—I hope it will not be the case—if the Government find themselves unable to accept an amendment that accommodates their previous objections. It is unacceptable that a number of inquests have been delayed and cannot take place because of a continuing anomaly in the law. We support the amendments.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I have been in favour of the introduction of intercept evidence for the purpose of convicting criminals for so long that my natural inclination is to vote for the amendment; indeed, that is why I voted in favour of it at Third Reading. Of course we are not dealing with criminal proceedings here, but the considerations are very similar.

I can see the argument that we should wait for the coroners Bill to come to us, and the argument, perhaps even more relevant, that we should wait for the final report of the privy counsellors who are dealing with the question of intercept evidence. On the other hand, strong arguments have been put forward to deal with this particular case now. The reason given by the House of Commons for disagreeing with the Lords amendment is not altogether satisfactory; it is simply that,

"sensitive material should not be disclosed to members of the public".

But the coroner, when he is a High Court judge, is hardly to be regarded for that purpose as a member of the public—nor, indeed, is counsel to the coroner.

The only problem remains the reference in the amendment to "other interested persons". That might well be said to go too wide, but it is dealt with in the final sub-paragraph of the amendment, which says that if the High Court judge has doubts about such a person, the material should be released to him in a redacted form, which would save the sensitivity of the information, and if it cannot be released to him in a redacted form it will not be released to him at all. For those reasons the amendment deserves our support.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Crossbench

My Lords, I have sympathy with the amendment but I see a practical problem: if the material is released to the coroner and he judges its release beyond him with regard to prejudicing national security, even if so seriously redacted that it is of little use to the workings of the coroners court, what happens then? That is the crunch. These look like safe recommendations to protect national security—what the noble Baroness, Lady Miller, described as a sort of tiering of protection—but if the High Court judge says that the release of the material would prejudice national security and it is so severely redacted as to be of little use to the conduct of the coroners court, I am not clear what then happens.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I support the amendment. I admit that at Third Reading I voted against it because I am particularly keen to see a coroners Bill that is all-embracing and sweeps up a large number of other issues that I hope will be in it, such as matters affecting the Armed Forces and matters affecting those in custody, the families of whom have to wait far too long for a bereavement to be closed.

In the debate in the other place, however, I was very taken with the clarity of the arguments that were put forward and which have been quoted by the noble Baroness, Lady Miller. Since then I have spoken to the solicitors involved in this case, who have been quoted both in this House and in the other place, who told me of the promises that have been made to them by the Government, stretching back to November 2007, that the case on which the many arguments have been based would be brought to a speedy solution. Nothing has happened. We have delays on the movement of government promises quite apart from the procedures in the Bill. I am satisfied in my own mind, if that does not sound arrogant, that the changes made to the amendment since it was last brought before us have advanced the issue a great deal further. I therefore hope that this time the Government will agree to the amendment in its present form, acknowledging that in the Bill's further passage there will always be improvements that can be made to it to satisfy points such as the one raised by the noble Baroness, Lady Miller.

Photo of Lord Robertson of Port Ellen Lord Robertson of Port Ellen Labour

My Lords, I oppose the amendment. I declare a not very relevant interest: I am an adviser to Cable & Wireless plc, which is the second largest telecoms provider in this country. On a number of occasions, we have debated the use of intercept material and the implications for national security, especially for the sources of sensitive information on which we rely in this country and on whose reliance we have found the solution to a number of major threats. The problem is that this enters a very big back door.

As a result of previous debates in this House and in the other place, the Chilcot committee was established. It is a committee of privy counsellors, appointed by the Prime Minister to look into the issues and concerns surrounding the use of intercept material. When it was appointed, it was the subject of widespread agreement. The Privy Counsellors from the three major parties and Sir John Chilcot considered the matter and established, in the final report, nine principles which the committee believed had to be addressed before intercept material could be used in our courts. The committee is now studying further those nine principles. The Home Office is engaged in a major inquiry to see how those matters can be addressed. I, and I dare say a number of other noble Lords, have been involved in that detailed consultation and there is an absolute determination to find solutions where solutions can be found.

It would be entirely wrong for this House today to take a position which in many ways would pre-empt the work of the Chilcot committee and the outcome of the issues that it is considering. I do not intend, although I could, to argue the case here about the nature of the sensitive information we are talking about and the sources which might well be closed off if this principle were to be moved forward on the basis of pre-Chilcot sensitivities because I do not think that is particularly relevant. There are those who are interested in coroners courts and a coroners Bill has been promised, but the whole issue of intercept was genuinely agreed between all the parties to be a matter for the Chilcot committee and the work that was to be done after Chilcot's nine principles were established.

To go down this road today, with whatever safeguards are thought of at this time to be sufficient, is to pre-empt the outcome of that very important matter. Knowing what I know, I believe that we enter into very dangerous territory, from this country's point of view, if we walk down this road without carefully examining all the implications. Therefore, I believe it is premature for us to vote in favour of this amendment today.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My Lords, the amendment moved by the noble Baroness, Lady Miller of Chilthorne Domer, is clearly an attempt to resolve a very serious anomaly about delayed inquests. As my noble friend has just said, another consequence is that, essentially, it pre-empts a series of processes which are currently in play. We know how serious and important an issue this has been. This House has debated the principle of the admission of intercept evidence in courts numerous times. We all recognise the importance of that. It is a serious debate and one which has to be addressed in a serious fashion.

We have a clear indication that we will have before us at some stage—I hope not too far in the future—a major piece of legislation on coroners. I think we all acknowledge that the law surrounding coroners courts needs a great deal of updating and I am sure that the debates in this House and in the other place on the implications of that will be extremely interesting. We also have the work of the Chilcot committee. The report that we have already seen on the consideration of a committee of privy counsellors—drawn together to look at how this matter might be taken forward—identified a number of complicated issues that had to be addressed before we could be sure that national security was not being endangered by the admission of intercept evidence in a court.

I do not see how coroners courts differ from any other court in this matter. We should wait to see whether the Chilcot committee comes forward with proposals addressing the nine principles outlined in its earlier report. If I were being cynical, I would say that this amendment is intended to be the nose of the camel under the tent: if we accepted it, before we knew it we would have the rest of the camel inside the tent, and intercept evidence accepted in every area. I am sure that the noble Baroness, Lady Miller, does not intend that, but it is the case that we would be pre-empting the twin processes that are already in track—the more important of those being the work of the Chilcot committee.

It is a serious matter, and I believe that the technical issues that the Chilcot committee must address are complicated and very important to national security. I understand that when the congressional 9/11 Commission published its report, a reference to some particular intercept material was buried away 200 or 300 pages in. The fact that it was possible to carry out intercepts under those specific conditions had not previously been made public. I do not know whether the 9/11 Commission intended to make public the fact that such intercepts were possible, but the fact is that it did. I have been told that, to those who watch these things, the consequence of that was immediately noticeable. Certain types of conversation stopped happening and could no longer be intercepted—and I notice the noble Baroness, Lady Manningham-Buller, nodding. The lesson is that we should be wary of the consequences of allowing these things to drift into the public domain by accident.

I am aware that the amendment before us allows the coroner, who would be,

"a judge of the High Court", to limit disclosure, or not to permit it, or to have it redacted, where that disclosure would not prejudice national security. However, there are two tests on that. One is: might the content of the intercept itself prejudice national security? The other is: would the fact of the intercept prejudice national security? It seems to me that however it is played, we are in danger of releasing the fact that some material was collected from a particular conversation, which would lead to an understanding either of particular sources or of processes. Revealing those could be prejudicial to the national interest.

The noble Baroness, Lady Manningham-Buller, asked an extremely important question: what then? We would then be faced with an inquest, and there would be certain material that would be known to exist but would not be released. That situation seems unsatisfactory to me. We have to find a way to address all these issues together, but this amendment is premature and unhelpful given all the other work being done, in particular by the Chilcot committee.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 4:00 pm, 24th November 2008

My Lords, as I understand it, the case made for this amendment is that a High Court judge, sitting as a High Court judge, is entitled to look at intercept evidence in an appropriate case, but when he is sitting as a coroner he is not so entitled. I fail to see the distinction: he is the same person, carrying the same responsibilities whether sitting as a coroner or in the High Court. Therefore, it seems right to me that he should have the power to disclose it if he thinks that it will not prejudice the national interest and is the proper way to determine the cause of death.

The noble Baroness, Lady Manningham-Buller, asked what would happen if the judge made such an order of disclosure. The order could be challenged by way of judicial review in the High Court and beyond, so it would not necessarily be simply his final decision. There are so many points about inquests that require to be discussed. It is not helpful to say that there will be a Coroners Bill in so many months' time. These inquests have been outstanding for a very long time.

I am also concerned to hear, only this afternoon, for example, that the Ministry of Defence is refusing to support the legal costs of a family in an inquest next week.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Crossbench

My Lords, my concern was not the need to challenge the judge. If the judge decides that the material is prejudicial to national security and accepts that redactions are significant, the material may be unusable in the court and we would have the same problem about the process of the inquest. That is all that I am saying. I am not saying that the judge would be wrong in his judgments.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, on the one hand, his decision is challengeable; on the other—in answer to the noble Baroness's point—it is for him to decide whether the information is of any use in determining the cause of death. If, through redaction or whatever, he decides that the information is not of any use to a jury or to himself, he will not rely on it in any way.

I heard only today that the Ministry of Defence was unwilling to support the costs of the family of a sergeant who was killed in a collision between helicopters last year, in an inquest that is to take place a week next Tuesday. We have to look broadly at inquests and at how families are to be properly supported in making representations before them. The proposal in the amendment is something that we can do now to ensure that delayed inquests can be heard and that the families can have some satisfaction.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I thank the noble Baroness, Lady Miller, for the amendments. They are a valiant attempt to address the knotty problem of ensuring that coroners' inquests can progress while protecting sensitive material from public disclosure. There has been considerable debate in this House and in the other place about the broad issues.

Unfortunately, for reasons that I shall go into, Amendment No. 106B does not provide a solution to this most difficult of problems. It would enable a High Court judge sitting as a coroner to require disclosure of sensitive material where he is satisfied that exceptional circumstances exist that make disclosure essential to enable matters that are required to be ascertained by an inquest to be ascertained. Where this material is central to ascertaining the cause of death but there are national security concerns over its disclosure, he could not disclose it to the jury.

However, it is the jury, not the coroner, who are the finders of fact in these coroners' inquests; and as the noble Baroness, Lady Manningham-Buller, pointed out, the jury already has material in redacted form. So the amendment would still not enable inquests to be completed or provide any further material to the jury and interested parties that cannot already be made available to them, and indeed already is available to them. That redacted information, without the material about which there is a security concern, is provided to them.

In view of the ongoing Chilcot review and the work we intend to do in the Coroners Bill, the points on pre-emption made by my noble friends Lord Robertson and Lord Harris are valid as well. However, in view of the point about redacted material and the question of what will be gained, this amendment would not achieve the right result—much as I wish that it did, as it would be very good to resolve the issue. The amendment tries to resolve it but does not. For those reasons, I ask the noble Baroness not to press her Amendments Nos. 106B and 133B.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, I thank noble Lords who spoke in this interesting debate. This amendment is the best possible solution before the Coroners Bill arrives. Apparently that Bill will be in the next Queen's Speech and could receive Royal Assent next year; or it could be one of the 10 or 12 Bills that it is rumoured will now be dropped. I absolutely understand the points about the Chilcot review. When it is complete and is taken together with the Coroners Bill, a better solution might be found. In the mean time, however, there will still be outstanding inquests that cannot be held. Is it really acceptable that these inquests should drag on year after year while this House and another place search for the perfect solution? I hear what the noble Baroness, Lady Manningham-Buller, said, but, with all due respect, it dealt with a hypothetical situation. We are not there yet. In one of the two outstanding cases, the IPCC itself said that it could proceed to inquest. If a body like that did not see problems with it, it suggests that it thought that an inquest could reasonably be held.

The noble Lord, Lord West, says this is a valiant attempt, which I think is damning with faint praise. I do not mind that at all. However, I cannot accept that our tradition of holding prompt inquests into the deaths of citizens at the hands of the state should be set aside. The Minister can always quote matters of national security. I fully accept how important those are, and I have given as much room as I can for the judgment of the judge to deal with them. Ultimately, however, it comes down to whether the Government think that the judge can take that amount of responsibility, which he can; and whether he is to be trusted, which the Government must say they do.

If the system does not work for the inquests that are stacking up at the moment we will have lost time and they will not be valuable, as the noble Baroness, Lady Manningham-Buller, pointed out. On the other hand, the likelihood is that they will proceed. Some answers, even if redacted, will be found, and those inquests will have been held. I would therefore invite the House to agree with me.

On Question, Whether the said Motion (No. C1) shall be agreed to?

Their Lordships divided: Contents, 125; Not-Contents, 144.

Division number 1 Private Parking: Ports and Trading Estates — Counter-Terrorism Bill

Aye: 122 Members of the House of Lords

No: 141 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and Motion disagreed to accordingly.

On Question, Motion C agreed to.