House of Lords
Wednesday, 21 October 2009.
Prayers—read by the Lord Bishop of Leicester.
International Development: Aid Spending
My Lords, the short answer is that the summary details of all DfID projects were published on the internet in August. The longer answer is that that was to meet the commitments laid out in our White Paper published earlier this year, and it reaffirms the Government’s commitment to keep all their promises on aid, and ensure continued progress toward the millennium development goals. We will reach the 0.7 per cent target of gross national income for official development assistance by 2013, and honour our Gleneagles commitments, and those through the Paris Declaration on Aid Effectiveness, including those on transparency.
I thank the noble Baroness for her question, although I am not sure about the party-political advertisement. I heard the speech; I recognised two or three facts in it, but not much more. However, I recognise that we have a commitment, which I hope is bipartisan. We are seeking to put online all the required information. At the moment, we are looking at a timetable for doing that in relation to the sensitivity of commercial information, the protection of our staff working overseas on DfID projects and our need and desire to include transparency, as the noble Baroness said. We hope to do this as early as possible.
My Lords, the Prime Minister made a very welcome commitment to put into legislation that 0.7 per cent of GDP would go to aid by 2013. Can the Minister confirm that this commitment will be in the Queen’s Speech, that he will do his best to ensure that it is there, and that time will be made afterwards to ensure that this is put into law? Does he see dangers if that does not happen?
My Lords, would my noble friend agree that it would have been very useful to have had this degree of transparency during the previous, Conservative, Government, when £700 million of taxpayers’ money from the international development budget was spent on building the Pergau dam, which was subsequently seen to be of no development value whatever?
My Lords, I recall that in the relevant speech that featured in the Conservative Party conference, which I watched with great interest, there was a lot of praise for the Administration that preceded this one. Strangely, in that praise, there was no mention whatever of the reduction in ODA which was consistently applied between 1979 and 1997.
My Lords, can Her Majesty’s Government assure us that the UK will contribute its fair share of the at least €35 billion that Christian Aid and other NGOs have established the EU must contribute per year for mitigation in developing countries, if poor communities are to respond to climate change impacts and catastrophic climate change is to be avoided?
My Lords, I support my noble friend very strongly in her Question, but I will go in a slightly different direction. Will the Minister consider, as suggested in the recent report of our Information Committee, that the Government should publish all draft Bills on the internet and invite comment on them from the public? If that happens, will it not encourage people outside Westminster to feel much more involved in, and much more understanding of, the work of Parliament than they do at present?
My Lords, the first part of the question—that about all Bills being put on the internet—is probably beyond my pay grade. The second part of the question, in relation to overseas development, seems to be something that I very much support. We can be very proud of DfID and what the British Government have done in the last decade. If you look at our achievements, 5 million children, globally, have been educated; there are 100,000 new teachers; and 12.5 million people have better sanitation. In India alone, 500,000 TB patients have been treated and 1 million poor people—mainly women—gained access to credit. We have a very proud record. I am very proud of the British Government; I am very proud of the British taxpayer for paying for it; and I am very proud that it happened under a British Labour Government. I do not think that it would happen under anyone else.
My Lords, the noble Earl’s question is answered in part by my previous reply. Sometimes we are not good enough at telling people about the good things we do. Our newspapers are very good at telling them about the bad things they think we do. The noble Earl makes the valid point that we have to get across not only our military perspectives and achievements in Afghanistan but what we are doing to support the poor people there. Our ODA core commitment is to eradicate poverty before all other things.
My Lords, on the point raised by the noble Earl, will the Minister confirm that DfID has a deliberate policy of keeping anonymous the projects it supports in Afghanistan rather than advertising them as being supported by DfID? If that is the case—I know that it is—the point the Minister makes about not advertising what we achieve is rather hollow.
My Lords, while we all welcome greater transparency, which is what this Question is about, does my noble friend none the less share my interest in ensuring that the costs involved in this are not too great? We are all well aware of the numerous government publications, many of which are not read, published often as a result of a statutory requirement and I am sure at considerable cost. If there were a choice between having greater transparency in respect of the internet and putting more money into the aid budget—those may be difficult choices—would we not all prefer more money to be put directly into the aid budget?
I am sure that I agree with my noble friend but my answer will also bring comfort to other Members, particularly in the Opposition. In what we are doing to eradicate poverty, we seek value for money. We have put 5 million children through primary education globally at about 2 per cent of what it could have otherwise cost. We are on track to achieve savings of £647 million by 2011 by vigorously applying value-for-money measures. In 2008-09 those savings will amount to a figure of £168 million: £74 million by improving how we allocate aid, £53 million through efficiency gains on the allocation of multilateral institutions, and £31 million by improving performance— something which I am sure all Members of this House will welcome, without wishing in any way to diminish the amount of money we put into ODA.
My Lords, we support marriage as evidence points to loving and resilient relationships having the most positive impact on a child’s life. Such relationships, though, are not exclusive to marriage. It is how the family functions, not its structure, which matters most. We therefore continue to encourage parents to develop and sustain long and stable relationships rather than to commit to marriage itself.
I am grateful to the noble Baroness for that Answer. Is she aware that the partnership breakdown rate for couples who are not married is more than double that for couples who are married? From 2002-04 this Government made available a grant of £5 million a year predicated to be used for support for marriage and relationships. It might be appropriate, as he is in his place, for me to quote the noble and learned Lord, Lord Irvine, or am I going on too long?
My Lords, I thank the noble Lord for his Question and for the enormous wisdom that he brings to this House with regard to these matters. We do support relationships—for example, we made £7 million of grants available in 2009-11 to a range of voluntary and community organisations, and to family organisations specifically, including Relate and Marriage Care. Also, because of the tough economic climate that we find ourselves in, we have made available an additional £3.1 million to support families through the recession. It is extremely important that we support marriage and other relationships that sustain a positive childhood for our young people.
Has the noble Baroness come across a report by Marriage Care which found that a sample of married couples in 2008-09 would have been £58 a week better off living apart than together, and that that figure, had they separated the previous year, would have been only £48? Does that not suggest that our fiscal arrangements are out of kilter?
I apologise to the noble Lord; I have not read that report. I will go and look at it of course. As a result of tax and benefit changes that this Government have introduced since 1997, four out of 10 families now pay no tax at all, and we make no apology for our policies that have lifted more than 600,000 children out of poverty and greatly reduced the tax burden on working families.
My Lords, I am sure we all welcome what the Government have done to help and support parents, but if I were to tell the Minister that one large London borough had only one parent support class on one occasion last year, would she consider that to be enough?
Of course I would not consider that to be enough, my Lords. I am particularly concerned that we should ensure a far greater take-up of parenting support classes around the country. This Government are considering new ways of targeting family support so that we can get it to the places where parents and families need it most.
My Lords, I disagree entirely with the noble Baroness’s analysis because the party opposite would like to discriminate against children of lone parent families of the kind of non-traditional family types; in the past I have strong evidence of the party opposite wishing to discriminate against them. This Government are about promoting a child-centred approach and about creating a system that targeted at support for children and families who need it most.
Is the Minister aware of the strong evidence that good-quality sex and relationship education has an important role in reducing teenage pregnancy and thereby encouraging more stable long-term relationships and adults making a commitment when they are mature enough to do so effectively?
My Lords, I am very much aware of the evidence that shows that good, strong education and advice on relationships, particularly for children and young people, can make a huge difference. This Government have responded to a great deal of good argument from this House about the proposal that PSHE should become statutory in the school curriculum. An important part of that is about making sure that children and young people learn about the roles and responsibilities of being a parent, the qualities of making good parenting decisions, the value of family life and, within that, the value of marriage.
What is their programme for implementing the bus services provisions of the Local Transport Act 2008; and in particular what measures they are intending to implement, and by when, to improve the quality of bus services in the English metropolitan areas outside London.
My Lords, the Local Transport Act 2008 provides significant new opportunities for local authorities to improve the quality of bus services in their areas. Authorities can already take advantage of the provisions about voluntary partnership agreements and quality partnership schemes, which are fully in force. The new statutory arrangements for quality contract schemes should be finalised by the end of the year.
My Lords, I thank my noble friend for that reply, following the unexplained delay until July of this year in publishing for consultation the draft regulations and guidance for the excellent bus quality contract schemes. Is he aware that transport authorities cannot meaningfully consider such schemes until there is a clear timescale for making available the final guidance on quality contract schemes? This is simply delaying improvements for passengers, as the Office of Fair Trading’s recent report considered that a remedy for the lack of competition in the bus sector would be to encourage the use of quality contract schemes to develop competition for the bus market. When does my noble friend now expect the first quality contract schemes outside London to be in place?
My Lords, I welcome my noble friend’s support for the principle of quality contracts, but I very much take exception to the suggestion that they have been unduly delayed. There has been no delay in setting up the arrangements. The consultation ended on 7 October and, as I said in my Answer, the guidance and necessary regulations will be published by the end of the year. The reason why it has taken some while to move from the enactment of the 2008 Act to the publishing of the guidance and the regulations is that the Government have been working at the same pace as the local authorities, as they were asked to. The legislation is about local empowerment. There are a number of measures in the Local Transport Act to which the local authorities attach particular importance and it is those that have received the priority. However, it is now up to the local authorities whether they wish to proceed with quality contracts. Naturally, we hope that they will do so.
My Lords, in his opening remarks the Minister mentioned voluntary partnerships. These have been up and running for some time, but the transport Act 2008 was designed to make them easier and ensure that they do not fall foul of competition law. Does the Minister understand that the Secretary of State’s guidance on the issue has done very little to change the status quo, and that there is therefore a great deal of difficulty in implementing these voluntary partnerships without falling foul of competition law? What are the Government going to do to remedy that?
My Lords, I am very surprised to hear the point that the noble Baroness makes. During the Recess I spent a day in Nottinghamshire and Derbyshire with Trent Barton, which has signed a very comprehensive quality partnership with the two local authorities in its area. It is providing a hugely improved quality of service to the local people in that area, working in collaboration with the local authorities, particularly in Nottingham, where it has established its own smart card. I am not aware of the difficulties that the noble Baroness has raised, but I will certainly check, and, if there are any, I will come back to her.
My Lords, I wonder whether the Minister will turn his mind to the parlous state of the bus industry. I refer to the woefully inadequate reimbursement of concessionary fares; the reduction in the availability of resources from local authorities for supporting the bus industry, to which he has referred; the greatly increased regulatory burdens on the industry such as the revised drivers’ hours legislation; and the proposed attack by the department on the bus service operators grant, which will result in the fares of those who do have to pay going up substantially. Will the Minister address these issues, which are fundamental to the health of the industry?
My Lords, the picture that the noble Lord paints of the bus industry in this country is not one that I or the great majority of bus users recognise. The introduction of free travel for older and disabled people, which came in in 2008, has provided travel opportunities for 11 million people, is hugely popular and has reversed the decline in the use of bus services. The Government are providing additional funding of £217 million this year, and a further £223 million in 2010-11, in order to fund the concessionary fares scheme. The Government have also paid around £30 million to local authorities for the cost of issuing the England-wide bus passes. This is not an industry in decline. As a result of the Government’s policy, bus usage is going up and the industry is a great deal more popular.
My Lords, is my noble friend aware of the Mayor of London’s budget problems with transport, which are exacerbated by his scrapping the congestion charge for the west of London, scrapping the £25 charge for gas guzzlers, putting up bus fares by 12.7 per cent and wasting hundreds of millions of pounds on replacing the bendy bus, which will cause a lot of extra pollution and reduce the number of bus passengers? Is this a good example of what will happen when these regulations come into play in the rest of the country?
My Lords, transport operators put up their fares for two reasons: either because they have to or because they choose to. In the case of Transport for London and the mayor, the fare increase is entirely out of choice. It would not have been necessary for the fares in London to rise by 12.7 per cent—or to rise at all—if it were not for the factors that my noble friend referred to, namely the scrapping of the western extension of the congestion charge, which would have raised £50 million, the dropping of plans to impose additional congestion charge on the most polluting vehicles, which would have raised another £50 million, and the crazy scheme to abolish the bendy buses and replace them with double-deckers. This is a matter for Transport for London and the mayor. He must answer for the consequences of that decision. The original forecast that he made of what the cost of that would be is so far short of the reality—perhaps by a factor of as much as 10—that he should be held to account by the people of London.
My Lords, the Government are determined that young people and lone mothers should go to work. There is acute difficulty in rural areas, where they have no transport. The Minister mentioned concessionary fares for the elderly, but many jobs that women and young people get are extremely low paid, and bus fares are too high for them to afford. Are there any concessionary measures which the Government can make to help these people keep jobs once they get them?
My Lords, I completely agree with the noble Countess in her reference to the importance of rural bus services. It is a concern that the Government very much share. The Department for Transport supplies nearly £60 million a year to local authorities in the form of rural bus subsidy grant, the purpose of which is to support those rural services. Some 2,000 bus services are supported in this way and that assists 38 million passenger journeys a year. The Government have invested heavily to ensure that resources are available for uncommercial routes, particularly in rural areas, and local and national funding for that is around £2.5 billion a year. The bus industry has every prospect of doing well and the role that it will play in rural areas will, I hope, continue to grow.
My Lords, we believe that there is a high threat from al-Qaeda in Yemen, which is seen as an easier environment to operate in than some regional neighbours. We are concerned about that rising threat. Yemen has witnessed a significant upsurge in al-Qaeda activity since Al-Qaeda in the Arabian Peninsula was formed in 2006. There have been a number of terrorist incidents in Yemen, including against western interests, and we believe that terrorists continue to plan attacks. There is little indication of an influx of insurgents from Yemen into Afghanistan.
My Lords, I am very grateful to the Minister for that reply. From it, I think it is fair to say that she accepts that the destruction of infrastructure and local economies in Yemen and the creation of tens of thousands of IDPs have provided a prime recruiting ground for al-Qaeda. I am sure she will accept that independent panellists are claiming that literally hundreds of Yemeni insurgents trained by al-Qaeda have been seen in Afghanistan and therefore one must presume that they have been engaging with our forces. Given that situation, does the Minister agree that it is incumbent on the United Kingdom to take a lead role in trying to bring peace and stability back into Yemen through international aid and reconstruction in order to tackle the problem at its source? Finally, in that context, can she tell the House where we are in terms of the international funds that we are contributing to compared with other countries—for example, Germany, which I think has given some £70 million this year alone to assist in Yemen?
My Lords, I thank the noble Lord, Lord Chidgey, for his comments and for the commitment that he shows to these issues. The noble Lord seeks reassurance on the UK’s commitment to funding. The UK spent £20 million in the financial year 2008-09 and this figure is bound to increase significantly in the next two years. Our development partner agreement with Yemen has allocated £105 million from April 2008 to March 2011. We also contributed £2 million to the UN appeal for displaced people in the north. Again, I reassure the noble Lord that we, with Germany, are leading in the European Union as the most substantial donors of assistance in Yemen. We agree that the implications of an unstable Yemen will be felt by the entire international community. It is therefore important that we work together with our partners in the European Union, with Saudi Arabia and the United States, and that we co-ordinate those activities.
My Lords, I reassure the noble Baroness that we have no evidence of any piracy connection with al-Qaeda in Yemen. However, we are working very hard with the Yemeni authorities in actions against piracy. Our main activity is supporting and funding the coastguards, who are doing a very good job in the waters around the Horn of Africa and the Gulf of Aden.
My Lords, perhaps I may press the Minister on the relations that we have with the Saudis on this question. The Saudi Government are clearly threatened by what is happening in Yemen. In past years, the Saudi regime and members of Saudi society have not been entirely helpful in coping with the threat from al-Qaeda. There was a very good article in the New York Times the week before last by a senior member of the Saudi Royal Family about how we need to work together in combating al-Qaeda. Are Her Majesty’s Government and other members of the European Union now in active dialogue with the Saudis on how we work together in this respect?
My Lords, again, I can reassure the noble Lord. He may be aware that quite recently the Foreign Secretary discussed Yemen with Prince Saud, the Foreign Minister of Saudi Arabia, and the Government of Saudi Arabia have committed substantial support to the Government of Yemen. We have included Saudi Arabia in the UK’s partnership in Yemen to ensure that we work in a co-ordinated way.
My Lords, we are aware that Yemen has enormous problems. President Saleh has to deal with the problems in northern Yemen and in the south, where there are secessionist movements which are claiming independence from Yemen. In the Arabian peninsular, the Yemenis are having to conduct a struggle against al-Qaeda, which recently carried out attacks. They also have very serious problems with their economy; they have to make tough, painful reforms and they have very poor public services. DfID is assisting efforts to ensure that they have a better education system and that they can improve their infrastructure and work against the increasing radicalisation of young people in Yemen. That is the mentoring process in which we are involved. There are many tasks and a big DfID programme with much collaboration with the Ministry of Defence.
That is the wrong way round!
Arrangement of Business
My Lords, I am sure that the most observant Members of the House will have seen that an additional sitting Friday has been scheduled for 6 November. I am pleased to report to the House that business has now been scheduled for that day. There is to be a debate on the Armed Forces and future defence policy in the name of my noble friend Lord Drayson. I hope that Members on all sides of the House will welcome the debate. A speakers list is now open in the Government Whips’ Office.
The House is about to embark on the first day of Report on the Coroners and Justice Bill. Given the long summer break, this would be a convenient point for me to remind your Lordships of the guidance in the Companion on the rules of debate on Report. I quote, in particular, that:
“Arguments fully deployed in Committee of the whole House should not be repeated at length on report”.
Coroners and Justice Bill
Report (1st Day)
Clause 1 : Duty to investigate certain deaths
1: Clause 1, page 2, line 20, at end insert—
“( ) A senior coroner shall inform the Chief Coroner if completion of an investigation is likely to take more than 12 months from the time that the coroner was notified of the death.
( ) The Chief Coroner shall maintain a register of prolonged investigations.”
My Lords, I shall speak also to Amendment 47. I shall not repeat the arguments deployed in Committee on either of these issues, arguments which were very ably put by the noble Baroness, Lady Finlay of Llandaff. With her permission, I have tabled a similar amendment to the one which she tabled in Committee and I shall speak to them both. I remind the House that we spoke at length about the great difficulties caused when inquests are delayed. Over time, witnesses may become more unreliable, thereby obscuring the search for truth, and making families wait prolongs and intensifies their pain.
These amendments reflect the Minister’s comments in Committee. They ensure that a monitoring system will be in place to highlight problems within the coronial system. If particular jurisdictions are struggling with workloads or resources and not completing inquests in a timely manner, the Chief Coroner would be able to take action. As the Bill intends to modernise the coroners service, the long delays suffered by a very few inquests—I accept the comments the Minister made in Committee—surely must be addressed. The Minister said that inquests should be held as soon as possible when all the relevant information is to hand. Some of the problems identified in the examples given in Committee were because various authorities dragged their feet in providing the relevant information. That needs to be resolved.
The Minister also argued that the Chief Coroner will be able to carry out the functions that the noble Baroness, Lady Finlay, spoke about so persuasively because the Lord Chancellor and the Chief Coroner will be given power in regulations to require information to be provided to them by senior coroners. If the Government intend to lay that out in regulations, why can they not put it in the Bill? Not having that in statute undermines the comeback that families would otherwise have to obtain a judicial review where an inquest has dragged on for year after year for no reason. Finally, it would focus attention on ensuring that delay in relation to deaths in custody or otherwise in state detention is addressed. Many of them address Article 2 of the European Convention on Human Rights. This issue has been highlighted year after year by the Joint Committee on Human Rights, beginning in 2004, and I remind the House that the committee commented in March 2009 that it had recently received evidence that many of the issues and delays not only remain, but are getting worse. I beg to move.
My Lords, I support this amendment but shall not speak at length. I think we sometimes underestimate the importance that bereaved families attach not only to the results of the inquest but to the fact that it represents closure that enables them to put their life ahead on an even keel. We probably will not have another coroners Bill for 25 years, so it is right that we should take the opportunity to reduce delays in the opening and completion of inquests.
I am pleased that the Government have included in the Bill the appointment of a Chief Coroner with powers to intervene in specified circumstances, the introduction of senior coroners for each area and the possibility of some transfer between areas. Those are good proposals that will cut logjams and reduce delays. However, this amendment on monitoring the situation is a useful addition, and I hope that the Government will accept it. I know the Minister may say that only about 10 per cent of inquests last beyond a year, but that is a lot of inquests and some delays are very long indeed. This amendment demonstrates an intention to do our best to correct the situation and deserves government support.
My Lords, I added my name to these amendments because, as the Explanatory Notes say:
“The purpose of the Bill is to establish more effective, transparent and responsive justice and coroner services for victims, witnesses, bereaved families and the wider public”.
In Committee, the Minister said that the average time for an inquest was 26 weeks. That, of course, is not so for Schedule 2 inquests, particularly those involving prisons, the police and the Armed Forces, for which two years is the average time.
Very recently, a very complicated case involving the police was brought to a conclusion within one year, because all those involved put their minds to getting the thing done quickly. That suggests that if greater pressure was put on the system to speed it up, it would be possible to avoid some of the dreadful cases that we know about in which inquests are taking four-and-a-half, five and even six years. Imagine what that does to closure for the families.
There is an example of this in the case of the Armed Forces. Since 5 June 2006, there have been regular Written Ministerial Statements with information about inquests into the deaths of military personnel. I welcome the amendments and commend them to the Government, but I particularly welcome Amendment 47—with its suggestion that the Lord Chancellor should make six-monthly reviews to Parliament—because Parliament could then be aware of delays, particularly in outstandingly long cases, and perhaps imposing ministerial scrutiny on the system could help to speed it up and reduce delay, which is one of the reasons for this Bill.
My Lords, I would like to intervene before the Minister speaks, partly because I want to make sure that I comply with the strictures of his noble friend the government Chief Whip.
It seems quite a long time since the beginning of June when we were in Committee on the Bill. The Minister might remember that my late friend Lord Kingsland dealt with this matter at that stage, when the noble Baroness, Lady Finlay, talked about the need for timely inquests. The Minister will accept that there is agreement right around the House about the need for timely inquests; we all think it desirable.
We support these amendments, moved this time by the noble Baroness, Lady Miller, in that they would make no extra demands on the resources of coroners but would help them, and indeed everyone else, to get a clearer idea of where and why blockages are arising in the system. It is in the interests of everyone that we have such expeditious inquests, not least for bereaved families. I particularly remember the somewhat voguish word used by the noble Lord, Lord Williamson, when he talked about the need for “closure” in these matters. He was right to use it, and it is something that we should all pursue.
Amendment 47 is the second arm of these two amendments, and would put the onus on the Lord Chancellor to report to Parliament. The noble Lord, Lord Ramsbotham, talked about the importance of that for extra ministerial scrutiny of these matters. We welcome it because it is also important for the extra parliamentary scrutiny that would be allowed if Ministers themselves had to see why there were unnecessary delays and had to iron out the problems. Although we accept that the amendments will not solve all the problems of delay, they would do an awful lot to help to rectify those problems, and we support them. We are hoping for honeyed words from the Minister as he welcomes them, or at least explains why the Government will do something else that will make them unnecessary.
For the record, I am grateful to those who have quoted me from Committee stage. I would have added my name to Amendment 1, but because of my personal bereavement I have not attended to parliamentary matters in the past week; however, it has my full support.
My Lords, perhaps I may follow up on what the noble Lord, Lord Ramsbotham, said. I am quite concerned about this very long delay for armed services coroners’ reports. In my view, it is, for a member of the Armed Forces, deplorable that the family, a widow or a mother, should be kept waiting for two to three years for the final report. I also am perturbed because should, God forbid, the casualty rate increase out of Afghanistan and anywhere else the Armed Forces serve, I see an even further delay. In the second paragraph of the amendment, the noble Baroness proposes that the coroner keeps a registration. I would like to see the Chief Coroner have a plan and do something about quickening the process.
The Minister knows my concern about this from the previous post he held. I do not see much improvement in the system overall. Either we want more coroners or we want a better system. With great respect, I would remind noble Lords that I cannot recall a coroner’s report on each and every one of the 30,000 dead from the German bombings of this country during the war, or on airmen who were shot down on our land, or on those of us who fought abroad and certainly not on those in the Merchant Navy who were killed or sunk in our own waters by enemy submarines. The whole question of the Armed Forces and how they are dealt with in this matter wants a thorough examination.
I would ask the Chief Coroner and the Minister to see what can be done to hasten that process. The length of time a family waits for this report is cruel and deplorable.
Amendments 1 and 7 concern an important issue in the investigation of deaths; that is, the time taken by a coroner to complete an investigation. I fully acknowledge that the delay involved in some investigations is unacceptable and we have already included provisions in this Bill to assist with those situations. It is inappropriate to make a Second Reading-type speech at this late stage, but the whole essence of this Bill is to make the coroners’ system more effective and more efficient so that these times can be reduced. Our objectives and the objectives of everyone who has spoken are congruent.
The introduction of a Chief Coroner will provide operational leadership for the first time and the introduction of the new medical examiner service will mean that fewer deaths are reported to coroners in the first place. Nevertheless, as noble Lords have pointed out, we already know that certain types of investigations are far more likely to lead to delays. In general, these will be where coroners depend on other organisations to provide investigation reports—not just the Prisons and Probation Ombudsman, but organisations such as the Health and Safety Executive or a transport accident investigation branch—or when there is a requirement to investigate a death abroad, particularly a death in a country which does not understand the role of British coroners. However, as my noble friend mentioned in Committee, the vast majority of inquests, some 64 per cent of the total, are completed within six months and 91 per cent are completed within 12 months.
I support the policy objectives that the amendments are aiming to achieve, but I hope I can convince the House that there are better ways in which they may be delivered. We intend to make regulations under Clause 38(3)(e) that will require information to be provided by senior coroners to the Chief Coroner, which will include information on inquests that have been delayed, to enable the Chief Coroner to have operational oversight of the service. The Chief Coroner is likely to take a particular interest in the details of coroners’ oldest cases, or those where the indications are that the investigation has stalled. This will enable the Chief Coroner to assist in any liaison which may be necessary with other organisations investigating the circumstances of the death, or to improve the protocols which are, or will be, established between coroners and particular organisations.
In relation to overseas deaths, the Chief Coroner, with the help of our consulate service overseas, will play an important role in representing the interests of the coronial system and will help to secure information on behalf of particular coroners. The Chief Coroner will therefore monitor the oldest or lengthier cases, and is likely to publish information about them for inclusion in his or her annual report. I therefore believe that these amendments are unnecessary, and suggest that the regulations—on which we will be consulting fully at a later stage—would be a more fitting place for them.
Similarly, as the annual report would be laid before each House of Parliament, we do not believe it to be necessary for the Lord Chancellor to make half-yearly statements to the House. The Chief Coroner’s report will be laid before each House of Parliament and should be self-explanatory. Of course, the Lord Chancellor may be questioned on any aspect of the contents of this report and how he or she intends to react to any issues raised through the normal procedures, such as Oral and Written Parliamentary Questions.
The Chief Coroner will be involved in drafting the regulations, which will be properly consulted on so that they are fit for purpose. A particular question is what will happen to the present system of quarterly Written Ministerial Statements on military inquests. In the short to medium term—two to three years—we anticipate that those statements will continue. However, once the new system is implemented, particularly with the appointment of the Chief Coroner, we may review that. Decisions are likely to be dependent on a number of factors. The first and most obvious is that the situation in theatre may be quite different in two to three years. Secondly, it may be more appropriate for the Chief Coroner, as operational head of service, to recommend to the Lord Chancellor the best and most appropriate method of collating and disseminating this information. Thirdly, some of these deaths may in future be dealt with by way of fatal accident inquiry in Scotland rather than by way of inquest in England and Wales, so that would also need to be considered when publicising this information.
There is always a conflict between putting something on the face of the Bill and including it in regulations, but we recommend the latter because the regulations would be better as a result. Our objectives coincide with everyone who has spoken—to improve the efficiency of the coroner service and as part of that, reduce the time that people have to wait. On that basis, and underlining the Government’s commitment to tackle the issues, I invite the noble Baroness, Lady Miller, to withdraw her amendment.
My Lords, one normally hears an argument against an amendment from quarters of the House other than simply the Government, but on these amendments we have heard a great many expert opinions—from the noble and learned Baroness, Lady Butler-Sloss, in Committee, and from the noble Lord, Lord Ramsbotham, with his knowledge of deaths in custody and the noble Viscount, Lord Slim, with all his expertise on Armed Forces in today’s debate.
I am encouraged by the support from the noble Lord, Lord Henley, and his Benches. I will particularly miss the noble Lord, Lord Kingsland, when I come to move Amendment 4. I am extremely saddened to be conducting this Report stage without him. I also express my condolences to the noble Baroness, Lady Finlay of Llandaff, who I am very glad can be here this afternoon to take part in this debate.
The Minister gave no good answer as to why the provision should not be in the Bill. Given the overwhelming strength of opinion, I am astonished that the Government should continue to resist this practical measure. For that reason, I should like to test the opinion of the House.
Clause 3 : Direction for other coroner to conduct investigation
2: Clause 3, page 3, line 2, at end insert—
“( ) Before giving a direction under this section, the Chief Coroner must take into consideration the resources available to coroner A.”
This amendment, which stands in my name and that of my noble friend Lord Hunt of Wirral, would insert a new subsection into Clause 3 after subsection (1). Clause 3(1) states:
“The Chief Coroner may direct a senior coroner (coroner A) to conduct an investigation under this Part into a person’s death even though, apart from the direction, a different senior coroner (coroner B) would be under a duty to conduct it”.
Under that provision, in a separate subsection, our amendment would add that,
“the Chief Coroner must take into consideration the resources available to coroner A”.
The amendment returns to a topic that we debated fully in Committee, where my noble friend Lord Kingsland made it clear that he expected the Government to think about it over the summer. Indeed, the noble Lord, Lord Bach, indicated that he would do so. There is not much that divides the parties on this. The Government seem to accept the principle that the availability of resources is indeed a consideration that must be taken into account, which is entirely reasonable.
There will be situations which arise that place a great strain on one coronial area, and we agree that it should be possible for that strain to be shared. The Government, in turn, agree that coroner A—as he is referred to in the Bill—who is there to help ease the strain, must not himself be swamped by a new workload. In Committee, the Government resisted our amendment. If we are convinced that the concern has been sufficiently addressed through other means then we will not necessarily insist that this wording be included in the Bill. However, we need to hear what the Government will do to ensure protection for coroner A.
On that occasion my noble friend made it clear that,
“This has got nothing … to do with increasing resources”—
we have all been made very much aware of the need not to impose extra costs on the budget—
“either centrally or locally. It has simply got to do with the functioning of Clause 3.
Clause 3 can only function—the directions can only sensibly be made—if they are made to people who are in a position to carry them out. The responsibility for making that assessment is the responsibility of the Chief Coroner. Inevitably, that assessment will have to include the terms of my amendment”.—[Official Report, 9/6/09; col. 583-84.]
That seems to be a matter of common sense. However, if the Government feel that this can be better set out in regulations or by some other means, I am sure the Minister will welcome this opportunity to explain what concrete proposals they have to ensure that existing coronial resources are used as equitably as possible. I beg to move.
My Lords, I thank the noble Lord for moving his amendment. Clause 3 of the Bill provides for the Chief Coroner to direct that an investigation be transferred from one coroner, coroner B, to a coroner in a different area, coroner A, and the noble Lord’s amendment would mean that the Chief Coroner would have to consider the ability of coroner A’s relevant authority to resource the investigation before doing so. As the noble Lord said, the late and very much missed Lord Kingsland tabled this amendment in Committee and indicated that he would retable it on Report.
In Committee, my noble friend Lord Davies of Oldham explained that the general principle when the Chief Coroner transfers a case under Clause 3 would be for coroner B’s area to retain responsibility for funding even after the investigation transfers to coroner A. My noble friend said then that there would be some exceptions to this and that regulations would set out in more detail where the responsibility for funding would rest following such a transfer. We have given the issue further thought over the summer, and I shall outline—shortly, but in a little more detail—how we envisage these regulations working. Of course this will be subject to change as we will consult on the regulations once the Bill has received Royal Assent. However, I hope the detail will allay the concerns of the noble Lord and the House about this small but significant aspect of the Bill, which will benefit bereaved families and ensure that the system operates with more of a national dimension than is possible at the moment.
In summary, we think that there are three possible funding arrangements—the first will be the general rule, and the other two arrangements will be exceptions to this general rule. These will be set out in regulations made under paragraph 9 of Schedule 7. The general rule will apply to most transferred cases. Regulations will say that when an investigation is transferred, coroner B’s relevant authority will be required to meet the expenses of coroner A. This will apply, for example, where the Chief Coroner transfers a case to coroner A to reduce a severe backlog in coroner B’s area, or where a bereaved family lives far from where their loved one died and the Chief Coroner directs a coroner who is more local to the family to carry out that investigation. I hope that reassures the House that in the vast majority of cases there will be no extra resource burden on coroner A, who will be hearing the case.
The regulations will also set out two exceptions to the general funding principle. The first is where the relevant authority for coroner A will be responsible for meeting the expenses of the investigation. When a death occurs overseas and the body is brought back to England and Wales, the coroner for that area—coroner B—initially has a duty to carry out the investigation. However, the investigation may transfer to a different coroner who is nearer the family, coroner A, whose relevant authority will then fund it.
The second exception is where relevant authorities for coroners A and B agree to share expenses. We think that this is likely to happen in only a few cases. An example might be where two or more people are ultimately killed in one incident, such as a car accident. If, while still alive, one person was moved to another coroner area where they later die, the legislation would require investigations to happen in the two areas where the bodies are lying. However, the Chief Coroner may decide that both deaths should be investigated jointly by the coroner in whose area the incident occurred. Funding arrangements could then be agreed between the relevant authorities.
I shall briefly outline—helpfully, I hope—other related matters that we envisage regulations covering. These could include procedures for notifying interested persons of a transfer, and a provision for coroner A to be accountable to coroner B’s relevant authority for expenses incurred in a case transferred to them, as they would normally be accountable to their own authority. We will of course work with local authorities, the Local Government Association and the Coroners’ Society, among others, to develop these regulations. I hope that, in the light of what I have said, the noble Lord might be content that the regulations will sufficiently address the concerns he has rightly raised about resourcing transferred cases, and that he might withdraw his amendment.
My Lords, I shall make it easy for the Minister: I am more or less happy, and I will certainly not be pressing this amendment. I am also interested in the detail he gave about how the regulations will work and what will be in them to deal with this matter.
The Minister stressed—I know that the department is keen on this—that there will be consultation. However, if the Government have already more or less made up their mind about how the regulations should work, one wonders whether the consultation is necessary on this occasion. He stressed at the end that he would be consulting a number of different bodies, so perhaps I am being unfair to the poor old Ministry of Justice in saying that this is yet another of consultations with no purpose because the Government or the department have already made up their mind.
As I said, I believe that the Government have used their summer break wisely on this matter. I am grateful to the Minister for having considered it and beg leave to withdraw the amendment.
Amendment 2 withdrawn.
Clause 5 : Matters to be ascertained
3: Clause 5, page 4, line 6, at end insert—
“( ) The senior coroner may determine that the purpose of any investigation shall include ascertaining the circumstances in which the deceased came by his death where—
(a) the senior coroner is satisfied that there are reasonable grounds to determine that the continued or repeat occurrence of those circumstances would be prejudicial to the health and safety of members of the public or any section of it, or(b) the senior coroner is satisfied that there are reasonable grounds to consider such circumstances to be in the public interest.”
My Lords, Amendment 3 is in my name and that of my noble friend Lord Thomas of Gresford. During earlier stages of the Bill it was repeatedly drawn to noble Lords’ attention—particularly by the noble Lord, Lord Alton, and by others—that the genesis of at least some of the momentum behind this Bill was the events of the Shipman inquiry, subsequent to the horrible and terrible events that had occurred. One important failure of the coronial service at that time was to see each death that came to its attention solely as an individual item. It did not pay proper attention to the fact that a whole series of deaths were occurring that formed a pattern which could quite clearly have pointed to what happened. Afterwards there was a great focus on the negligent medical contribution, and properly so, but remarkably little focus in the public mind on the failures of the coronial service.
One problem with Clause 5 is that it draws the scope of inquests quite narrowly in Clause 5(1), to look only at the individual, and only widens it in Clause 5(2) in order to address deaths that raise implications regarding the European Convention on Human Rights. The amendment seeks to make clear to the senior coroner involved that, if there are reasonable grounds—for example, the death of a vulnerable elderly person in a private nursing home, a death in a private workplace, or concerns about transport and workplace safety—these ought to be investigated because of the potential that they were part of a wider pattern and could have implications for public health, welfare and safety.
This issue was raised before by the noble Lord, Lord Dubs, and has also been pressed by the JCHR. I know that at that stage the Minister made clear that the coroner had the discretion to deal with matters in the way that I have described. However, it is not in the Bill. If part of the whole purpose of this legislation is not only to change the legal structure but to send a message to the community at large and to the officials involved as to what the community expects should be done, it seems that there is no case for not putting it clearly in the Bill. In this amendment we make it clear that if the senior coroner is satisfied that there are reasonable grounds for determining that the continued or repeated occurrence of the circumstances led to the death, and that these are in the public interest, he should proceed. We heard what the Minister said before, but it does not, without this amendment, send the kind of message that would be extremely helpful, particularly in light of the events that led to the current legislation. Therefore, I beg to move.
My Lords, I have a degree of sympathy for the sentiments expressed by the noble Lord, Lord Alderdice. The new requirements do not seem unreasonable. After all, if there is a continued risk to the public, something ought to be done about it, the “somebody” in this case being the senior coroner. However, I wonder whether the amendment will expand Clause 5 to a broader remit than is intended by the spirit of the Bill. This is why I say that I have only some sympathy to offer the noble Lord. Clause 5 is deliberately—as I understand it—narrow so that matters to be ascertained are the circumstances surrounding the death of the individual who is the subject of the inquest. I fully accept that the Minister will explain at greater length why he will resist the noble Lord’s amendment, but I ask simply to add to the debate the question of whether the amendment would increase a degree of inconsistency in inquests if senior coroners made different decisions on which matters ought to be ascertained. That may cloud the purpose of Clause 5, which we believe is currently a straightforward direction of matters to be ascertained. For those reasons, as I said, it is only a degree of sympathy that I can offer to the noble Lord, Lord Alderdice.
My Lords, the amendment would increase the number of Article 2-style investigations if a coroner believes he or she needs to investigate the broader circumstances of the death for reasons of public safety or public interest. Although Clause 5(2) specifies that deaths engaging Article 2—where the state is implicated in the death—should have a wider investigation, this does not mean that the coroner cannot have such an investigation in other cases if he or she takes the view that circumstances demand it. In addition, it is likely that the Chief Coroner would issue guidance on cases where a broader investigation would be appropriate. This might include those situations specified in the amendment; for example, a death which raises wider and significant issues of public health and safety, such as when he or she is investigating clusters of deaths from a similar cause. The deaths in Stafford hospital would be a good example of that.
The key issue here is that the coroner will have the discretion to require a wider investigation if he thinks fit. He will continue to have the discretion to set the scope of any inquest and may decide to investigate the broad circumstances. We do not think that it is in the interests of the vast majority of families for coroners’ investigations to be extended. Many already find inquests intimidating and to have the scope expanded would mean that it would no longer be a relatively straightforward inquisition. There are also, of course, resource implications. The wider the scope and the longer the inquest takes, the more coroners would be needed. It is also argued that more legal representation would be required to ensure that family interests are better represented, thus removing families from the heart of the process.
In the light of these reassurances, I do not think that it is necessary to include this amendment in the Bill. I hope that the noble Lord, Lord Alderdice, will consider withdrawing it.
My Lords, I hear what the noble Lord says in this regard. However, it is not simply a matter of saying that only the family should be involved at the heart of the inquest. The whole point is that it does not involve just the family of the person who has gone; other families might find themselves in similar circumstances if the matters are not resolved and clarified. That is also an important heart of any inquest.
As regards discretion and the opportunity for the coroner to use it, that has always been the case; it is nothing new. It was the failure to use that discretion energetically in situations where it was necessary that led us precisely to the problems that were the genesis of this Bill. I rather doubt that coroners in general will read the Bill, and particularly the debate in your Lordships' House, in detail. My only hope is that a Chief Coroner will be appointed who will not only read the Bill but the debate and the injunction of the Minister that he should put in place guidance for others which would include this specific issue. With that hope as regards this new Chief Coroner, whoever he or she may be, I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
4: After Clause 5, insert the following new Clause—
“Information for inquests
In section 15 of the Regulation of Investigatory Powers Act 2000 (c. 23) (general safeguards), after subsection (4)(c) insert—
“(ca) it is necessary to ensure that an inquest has the information it needs to enable the matters required to be ascertained by the investigation to be ascertained;”.”
My Lords, this group of amendments returns us to the use of intercept evidence and its place at inquests. We have had much debate about how the Bill rightly modernises the coroner service. Of course, it should make it a service for the 21st century, so it should not duck a central fact of 21st century security and policing; namely, that intercept evidence plays an increasing part in much of that policing and security work. The coronial service must be enabled to work with that, which is the aim of my amendments.
In Committee, the noble Baroness, Lady Ramsay of Cartvale, said that I was barging in in a cavalier fashion in trying to introduce intercept in coroners’ courts. She will be happy to hear that I have met the intercept as evidence implementation unit about which she talked. I appreciate that its work is necessary and complex. However, does this House have the will to put at the heart of the Bill a single coronial system that operates when somebody dies, or will it accept the parallel system which the Government prefer because they cannot bring themselves to accept an adapted form of intercept that would work within the coronial system?
The House will recall that this problem was highlighted by the Azelle Rodney inquest, but the increasing use of intercept means that this is a growing problem. The Rodney inquest has been outstanding for four years and we have already talked this afternoon of the effects of this delay, not only on family but also on witnesses. Four years is a long time for a witness to remember any facts accurately and it must seem like a lifetime in hell for the mother whose child has been killed. This inquest cannot be heard, we are told, because of the intercept evidence and/or the method of gathering it. The revelation of this evidence would jeopardise national security or the ability to detect and investigate further crime activity.
We certainly accept on these Benches that there will be occasions when evidence cannot be openly heard and this is not a new problem. In Committee we were reminded that the noble and learned Lord, Lord Lloyd, first proposed lifting the ban on this evidence 10 years ago. The Chilcot review recommended lifting the absolute ban on Section 17 of RIPA in February 2008. We tried in this House to address these problems in legislation in the Counter-Terrorism Bill in 2008 when the Government proposed secret inquests. In fact, in the face of united opposition, they withdrew that proposition, very sensibly. Today they propose a solution using the Inquiries Act to solve this problem, which we believe is an even worse solution than their previous unacceptable idea of secret juryless inquests. Under the Inquiries Act they will have far too wide-ranging powers to restrict public access to hearings and documents which will restrict the final report.
I do not believe that the Government paid sufficient attention to what the noble Baroness, Lady Neville-Jones—then shadow Minister for Security and now shadow Home Office Minister—said from the Conservative Front Bench when she explained why she supported the amendments we tabled then, which were similar to those before your Lordships’ House today. She said:
“The point is not simply that inquests should be institutionally independent, but that they should be prompt”.—[Official Report, 10/6/09; col. 721.]
She put her finger on the two overriding issues. Institutional independence is exactly what would be lost if we were to accept the Government’s solution of an inquiry substituting for an inquest because the state can be heavily involved in the inquiry process—setting the remit, deciding on exclusions, and so on.
These amendments have been carefully drafted to ensure that all evidence, including that gathered under RIPA, can be heard by a judge sitting as a coroner. He is independent from government and seen to be so. He has the power to address the fact that some of the evidence may need to be heard in private and may never see the light of day. But importantly, the whole process remains within the coronial system with all its independence from the state. This point was eloquently explained in Committee by the late Lord Kingsland in his usual forensic and concise manner when he said:
“The Opposition would much prefer a solution in the coronial context to the one in the context of the Inquiries Act”.—[Official Report, 10/6/09; col. 725.]
He also pointed to a good compromise in an attempt to meet the Government’s concerns when he said:
“There may be room for an amendment that advances the possibility that, in certain circumstances, intercept evidence could be used in a traditional coronial context, with appropriate safeguards. However, if it is considered that the security nature of that evidence is such that relevant matters should be withheld from the jury, the Government could go to the second stage and initiate an inquiry—as long as the amendments that we tabled to the inquiry system were accepted by the Government”.—[Official Report, 10/6/09; col. 727-28.]
Government Amendments 21 to 23 miss the central point that Lord Kingsland made so concisely. They also miss the point made in Committee so cogently by the noble Lord, Lord Pannick, that there are powerful safeguards already in our amendments but that if the Government feel that additional safeguards are needed, they should explain what they are and table those. The Government have ignored the constructive suggestion made by the noble Lord, Lord Pannick, and instead simply invite us to accept the unacceptable.
We believe that our coronial system ensures that the coroner sets the remit for an investigation into a death, and not the state. Our coronial system is there to ensure that citizens as jurors are involved in violent or unnatural deaths at the hands of the state. The fact is, they are there as the eyes and ears of society to make sure that the state has not overstepped the line. Ensuring our security may sometimes involve police shooting to kill, for example. We would all accept that there is a fine line between ensuring our security in such a way and impunity for agents of the state when things have gone wrong. It is not for the Government to have any part in deciding where that line is or, indeed, when it has been overstepped. Our amendments would ensure that the coroners system remains at the heart of the most difficult and controversial deaths. I beg to move.
My Lords, the noble Baroness referred to the Committee stage, when we had quite a debate on this issue. Amendments 4 and 5 are identical, word for word, to the two amendments that were tabled in Committee and withdrawn after a discussion. I said then that I was puzzled to have to discuss amendments to RIPA to allow intercept as evidence in coroners’ courts, as is again proposed in Amendments 4 and 5. I am no less puzzled now than I was in June.
I am puzzled because the committee of distinguished privy counsellors, chaired by Sir John Chilcot and comprising my noble and learned friend Lord Archer, Sir Alan Beith MP and the noble Lord, Lord Hurd, who has now been replaced by the right honourable Michael Howard, reported to the Government in January 2008 after six months of detailed investigation, taking written and oral evidence from an impressive array of those who know about interception, including Members of your Lordships’ House, that nine conditions would have to be met—the noble Baroness did not mention this—before intercept could be used as evidence in court. As my right honourable friend the Prime Minister made clear in the House of Commons in February 2008, the Government accepted the report in its entirety, including its conclusion—again, the noble Baroness did not mention this—that, if the nine conditions were not met, intercept as evidence should not be introduced in courts.
The Home Office intercept as evidence implementation unit was set up and I am pleased to hear that the noble Baroness has visited it and got to know what its work is about. However, as she no doubt discovered, it has not yet completed its detailed work. Anyone who knows anything about interception in all its complexity of operational and other problems is not surprised that such a task is taking this kind of time. Anyone who thinks otherwise fails to appreciate the importance and the enormity of the problems. No one whom I know has ever been against using intercept as evidence as a matter of principle. The practical problems and dangers in its implementation are and have always been the difficulty. When this issue has come up in another place, both the right honourable Alan Beith and the right honourable Michael Howard have made it clear that they, too, think that the Chilcot conditions must be met before there can be a change in this.
The noble Baroness is right that I said in Committee that I thought it cavalier to rush in and do this. She took exception to the word “cavalier” but I have to say to her that, if I substituted another word, it would be even less acceptable, because I find it irresponsible to try to use intercept in coroners’ courts in this way, with no regard to—
My Lords, I have not been in contact with the implementation unit. It will take as long as it takes. It is doing very detailed work and I am not surprised that it is finding it very difficult, for all the reasons that the noble and learned Lord, Lord Lloyd of Berwick, has heard me bring forward many times in this House. It is an extremely complicated, difficult problem, with a lot of dangers involved.
I will conclude now, because I do not want to make a long speech. As I said in June, I find myself wholly in agreement with the final sentence of a letter from Mobile Broadband Group, which represents the UK businesses of O2, Orange, T-Mobile, Virgin Mobile, Vodafone and 3. The mobile operators form a significant constituent part of the communications services providers, whose importance is frequently recognised in the reports of interception commissioners. The last sentence of the letter states:
“If intercept as evidence is to be introduced into any court (criminal, civil or coroners) it should be done in a comprehensive way, meeting the nine conditions of the Privy Council review in their totality, including a detailed implementation plan which incorporates safeguarding the critical interests of partners’ legitimate needs”.
I could not put it better myself. I oppose the amendment.
My Lords, the noble Baroness, Lady Ramsay, makes some powerful points, if I may respectfully say so. However, I suggest to the House that the answer to the points is that Section 18 of the Regulation of Investigatory Powers Act already allows for the use of intercept material in courts in a number of exceptional circumstances. All that the amendment proposes is that there should be a further exception allowed by reason of the exceptional circumstances of the cases that we are talking about, and the desperate need for the coronial jurisdiction to function effectively. It may be that further conditions should be added to the provision suggested by the noble Baroness, Lady Miller; but if further protective provisions are needed, the Government should come forward and explain what protection is further required in order that this intercept evidence may be used in the coronial jurisdiction.
My Lords, I will reply to that. There is all the difference in the world between now adding the provision to allow a coroners’ court to hear intercept evidence, and the careful, detailed and complicated negotiations and consideration that took place in preparing the Regulation of Investigatory Powers Act 2000—I do not know if the noble Lord was involved in that. The Chilcot committee report says that intercept could be used in court under nine conditions. To circumvent that by coming in sideways and saying, “Well, it could come into a coroners’ court because we think that is a good idea” is quite unacceptable.
My Lords, I am tempted to say, “Here we go again”, and suggest that the participants in this debate—we are virtually all the same—could say simply “Speech number 10” and sit down. First, I declare an interest as an adviser to Cable & Wireless. However, I speak not in that regard but with reference to the positions that I held in government and in the North Atlantic Treaty Organisation.
I worry about this debate, because it seems to be a continuation, relentlessly pursued in the hope that one day, accidentally, the measure will pass. At the Prime Minister’s instigation, the House—and Parliament generally—set up a committee of privy counsellors to look into this fraught business. The Prime Minister made it clear at the time that, in principle, he was in favour of intercept as evidence. However, he said that he had had strong representations, especially from the intelligence services, indicating that there were serious reservations about the use of intercept that might affect national security.
At that point, the Prime Minister said, “Right, we will set up a committee of distinguished privy counsellors”, and the members of that committee were by any standards distinguished. They looked at the matter, pored over it and came to a conclusion. They said that, again, in principle, intercept as evidence should be used in court, but they said that there had to be nine conditions in order to protect what they defined as protectors of national security. I thought that we had arrived, exhaustingly over a period, at a consensus that we should let the process proceed to see whether the nine conditions could be satisfied. The Home Office has set up a department, and the noble Baroness has been to see it, as have I, to give an opinion on that, but as yet a conclusion has not been reached and the Chilcot committee members have not yet come back to us on whether the nine conditions can be satisfied.
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.
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.
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.
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 the 2005 Act for the Government’s proposals to be in any way acceptable. The first of those requirements was that, where an inquiry is to be used as an inquest, it will always be chaired either by a High Court judge or by a more senior judge. My late noble friend also considered that it would be an outrage if the Secretary of State attempted, in the course of an inquiry looking into the death of someone under Clause 5, to seek to change the terms of reference of that inquiry. In their Amendments 21 and following, the Government have sought to address those concerns. For that, at least, we are grateful and we are happy to accept the concessions which the Government have made, so far as they go, to make the use of the Inquiries Act more palatable. However, we do not believe that they have addressed the underlying problem which is the use of the coroner's court as the first choice to hear an inquest, not an inquiry established by the Executive.
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.
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.
My Lords, we should be conscious that there are a number of different strands in this debate. There is the entirely right and proper concern for families where inquests have been delayed for an inordinate time because of this discussion about what can be presented in a hearing. We all have sympathy with that and would like to see it resolved in an appropriate way. Then there is a separate strand, a continuing campaign by a number of noble Lords and many people outside this House who believe that if intercept evidence could be introduced into the court system, it would provide a magic bullet that would resolve all sorts of other issues. We would not need quite such complicated and draconian terrorism legislation, we could resolve all sorts of serious crime issues and so on and so forth, and it would be absolutely wonderful.
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.
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.
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.
I listened to the very informed comments from the government Back Benches. Noble Lords spoke about the Chilcot inquiry. That was an extremely important inquiry whose findings I would not belittle in any way. Nevertheless, it must be possible for the Government and all their advisers to work out a way to put those nine conditions into the Bill in such a way—it may not be possible next month, but we have been waiting for two years already—that they can stay within the inquest system and the conditions can be fulfilled. That has not been tried; nobody has come to us with a draft of possible ways in which those safeguards could be used.
The noble Lord, Lord Harris of Haringey, said that this is about having sympathy with the families. All of us of course have sympathy with the families, but today’s debate has not been about that; it is about the principle of what should be at the heart of the inquest system in those most difficult cases where it is the state which, for whatever reason, has been the cause of the death of the person for whom the inquest is being held.
We cannot believe that the solutions offered are something that we should be considering, when the Bill will be on the statute books for 20 or 30 years. Chilcot has reported, and we know what the conditions are; for all that the noble Baroness, Lady Ramsay, says, the implementation team is getting on very well with its work and can come to a conclusion in the very near future. So it is practical to look at this within the inquest system.
The other thing that gives me great confidence that this is so is that, when we debated this matter before, the noble Baroness, Lady Neville-Jones, whom the noble Lord, Lord Henley, and I have both quoted this afternoon, was in support of this solution. As noble Lords will be aware, she chaired the Joint Intelligence Committee for some years.
Well, she has been a member of it for some years, and she chaired it. I would be surprised if noble Lords were saying that she has less expertise in this matter than many of them.
What we come back to is whether this is a principle that the Government want to establish in the heart of the Bill. The Minister said that the Conservative Party should think long and hard before supporting these amendments. Actually, I think that it is extremely depressing that the Government, with their alleged support of open government and transparency, should try to establish a principle in the heart of this Bill that avoids having the coronial system as the gold-plate system, which we need to see when somebody has died at the hands of the state.
I understand all the practical arguments about the fact that mobile operators have a difficulty here, but that difficulty can be overcome, and we cannot allow important statutes to be dictated by the concerns of mobile operators. Of course, their staff have to be protected, but there are ways in which to do that. The noble Lord, Lord Pannick, put his finger on it when he said that there were already provisions under Section 18 of RIPA that allow such evidence in court, in exceptional circumstances. We are talking about only a handful of inquests; they will always be exceptional. People who have died deserve no less than those in court in other circumstances. Given those issues, I wish to test the opinion of the House.
5: After Clause 5, insert the following new Clause—
“Amendment to the Regulation of Investigatory Powers Act 2000
(1) Section 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) (exceptions to section 17) is amended as follows.
(2) In subsection (7), after paragraph (c) insert—
“(d) a disclosure to a coronial judge or to a person appointed as counsel to an inquest or to members of a jury at an inquest or to an interested person in which the coronial judge has ordered the disclosure.”(3) After subsection (8A) insert—
“(8B) A coronial judge shall not order a disclosure under subsection (7)(d) except where the judge is satisfied that the circumstances of the case make the disclosure necessary to enable the matters required to be ascertained by the investigation to be ascertained.
(8C) An order for disclosure made under subsection (7)(d) may include directions enabling the redaction of any material relating to the method or means by which the information was obtained.”
(4) After subsection (13) insert—
“(14) In this section “interested person” has the same meaning as in section 38 of the Coroners and Justice Act 2009.
(15) In this section “coronial judge” means a judge nominated by the Lord Chief Justice under the Coroners and Justice Act 2009 to conduct an investigation into a person’s death and who has agreed to do so.””
Amendment 5 agreed.
Clause 7 : Whether jury required
6: Clause 7, page 4, leave out lines 25 to 27
My Lords, for much of the Bill so far we have been discussing improvements and additions. Amendment 6—I shall speak also to Amendments 9 and 10—slightly put the clock back by suggesting that we ought to revert in this legislation to the wording of the Coroners Act 1988, particularly its Section 8(3). That provision specifies that, regardless of initial classification of the cause of death, an inquest must be held with a jury if the death occurred in prison or police custody or following police contact. The Bill proposes that some causes of death should not require a jury but my amendment suggests that we should revert to the old rule where a jury was required in those circumstances. Amendments 9 and 10 also ensure that an inquest with a jury is required in particular circumstances.
Hidden among all of this is provision for including deaths in such places as psychiatric hospitals. My reasoning for such an amendment comes from a number of cases—one in particular, where a young man met his death in a secure hospital some two and a half years ago. There have been continuous efforts to have that case investigated. Unfortunately the checks and balances that are now in the system—for example, the Prisons and Probation Ombudsman is responsible for investigating unnatural deaths in prison, before inquests might be held—do not apply in psychiatric hospitals. The Care Quality Commission has recently been formed, and it is beginning to hold the sort of inquiry that the ombudsman has been holding for some time. However, I seriously believe that it makes sense to continue the status quo of the Coroners Act 1988. I therefore beg to move.
My Lords, I do not wish to detain the House save to give support to the noble Lord, Lord Ramsbotham, in the amendments that have been put down in his name and my name and that of my noble friend Lord Thomas of Gresford. He addressed the question of the inclusion of a jury and the problem of deaths in psychiatric hospitals—something of which I am rather aware. The Government should seriously consider the proposition that these amendments put forward, and I shall leave it at that.
My Lords, Amendment 7, which is in my name, would add the need for an inquest jury where,
“a member of the security services”,
has been responsible for the death. The wording in the Bill is,
“in the purported execution of the officer’s or member’s duty as such”.
I moved this amendment in Committee but it was dealt with rather disparagingly by the Minister at that time, who said, “Well, there has never been a recorded instance of a death caused by a member of the security services”. That was a pretty wide statement. He said that it had not occurred in 50 years. Clearly, if a member of the security services is employed to carry out functions very similar to those of a police officer, it may well happen. If it should happen, it would be a travesty for it to be said that a jury was not needed in such a case because it does not come within the Bill. When a member of the security services operates as such in the execution of his duty, he may be involved in a fatal incident. It is easy to see how it could happen in these days of terrorism. Accordingly, the same protection should be given by a jury in those cases as exists in relation to any police officer. I am speaking to that amendment now and will move it in due course.
My Lords, I speak to Amendments 8, 11 and 12 in my name. The substantive issue is in Amendment 11.
These three amendments to Clause 7 make provision for inquests to be held into the deaths of individuals undergoing military training, or that of a young person while training or serving with Her Majesty’s Armed Forces, where the death is violent or unnatural or the cause of death is unknown. The House will be aware that any death of a young person in the Armed Forces is a matter of great sensitivity. The Royal British Legion and others who assist the bereaved in such circumstances report that the relatives of the deceased very much want a formal inquest and to be kept as fully informed as possible.
In 2007 the Blake report, following the deaths of four young servicemen at Deepcut barracks, recommended that the recruitment age of the Armed Forces be increased to 18, due to the inherent risks involved. Where such recommendations cannot be taken forward, surely additional protection must be necessary. Young adolescents and those undertaking training are particularly vulnerable as they come to terms with their new careers. The Government’s duty of care has increased and if, sadly, something goes wrong, there should be additional scrutiny.
Clause 7(2)(b) already makes provision for deaths resulting from an act or omission of a police officer or service police officer. My amendments would ensure that, were the death of a youth to occur under training in the Armed Forces, additional scrutiny into the circumstances and lessons learned could be followed up and implemented. These safeguards would help to ensure fair treatment for the youngest members of the Armed Forces, in line with the undertaking in last year’s Command Paper 7424, The Nation’s Commitment: Cross-Government Support to Our Armed Forces, their Families and Veterans. Indeed, in the foreword to that Command Paper, the Prime Minister gave an explicit assurance to the Armed Forces. He was, he said,
“determined to ensure that they are fairly treated”.
In Committee, the noble Lord, Lord Davies of Oldham, responding for the Government, said that,
“areas that cause significant public concern will be an issue”.
He went on to say that,
“in due course and during the course of the Bill, we will seek to be more explicit”.—[Official Report, 10/6/09; col. 698.]
I urge the Minister now to accept these amendments which are important to safeguarding the interests of young personnel who enter the Armed Forces, or to indicate what explicit steps are to be taken to ensure that the interests of the victims and those of their relatives are fully protected.
My Lords, the noble Lords, Lord Ramsbotham, Lord Thomas and Lord Alderdice, and the noble and gallant Lord, Lord Craig, have brought us now to debate Clause 7 on whether a jury is required. I declare my interests as set out in the Register, in particular as a partner in the national commercial firm Beachcroft LLP.
I am proud this week to be able to add to those interests the fact that I have just been elected a vice-chairman of JUSTICE, a post which my late colleague Lord Kingsland held with great distinction. He is sorely missed in many ways—for example, when we discuss juries. I share his belief that the jury system is fundamental and must remain, despite the Government’s efforts from time to time to abolish trial by jury in certain instances. Having a jury sit with a coroner is always the exception rather than the rule because the logistical and cost implications render such a move impractical. That is a reasonable line to take. However, the noble Lords’ amendments seek to extend the cases in which a jury is assembled. Although I have just said some cautionary words, we have consistently argued that inquests must be as transparent as possible. The jury system is an important feature of our coronial system; it is long established and well known. The presence of a jury in certain cases is a principle which we defend. For that reason we support some of the noble Lords’ amendments in this group. We see the merits of Amendment 6, moved by the noble Lord, Lord Ramsbotham, Amendment 7, in the name of the noble Lord, Lord Thomas, and those in the name of the noble and gallant Lord, Lord Craig.
As has been explained, Amendment 6 would remove the qualification that an inquest be heard with a jury if a death took place in the custody of the state only if the death was violent or unnatural or the causes of death were unexplained. Amendment 7 includes deaths resulting from the act or omission of a member of the security services. The Government may well point out that these are unnecessary additions, as Clause 7(3) states:
“An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so”.
However, the important point remains that the state bears a grave responsibility for the welfare of its citizens and of those who are supposed to enjoy—and who have every right to expect to enjoy—its protection. When something goes wrong as a result of an act or omission by an agent or institution of the state, public confidence is undermined. Juries are one way to help restore public confidence.
As my honourable friend Henry Bellingham said in another place, we worry that jury inquests will become ever fewer in number. That is why we want to see fairness and transparency enshrined in the system. The more narrowly Clause 7 is drawn, the less frequently, we fear, it will be used. By widening it, we indicate that juries should not become a vanishingly rare phenomenon. For us, that is the greatest attraction of the noble Lords’ amendments.
The noble and gallant Lord, Lord Craig, referred to troops who are killed in training. We endorse his amendments. When we debate amendments to Clause 12, we will again touch on that issue, but we support his Amendment 11 as an important step in raising confidence that troops are being treated openly and fairly. The noble and gallant Lord points out that to differentiate between soldiers who are training and those on the front line is spurious, as all our troops are training for active service. We hope that the Government will find a form of words that recognises the importance of the points which he made.
I start by congratulating the noble Lord, Lord Hunt, on his promotion to vice-chairman of JUSTICE, if that is the appropriate title. It is an honoured organisation and he deserves the accolade. I know it is particularly important to him because he is succeeding Lord Kingsland, whose wise words we have missed already today.
At present fewer than 500 inquests a year across the whole of England and Wales take place with a jury present. That is less than 2 per cent of the total number of inquests—around 30,000 a year—across the whole of the jurisdiction. Under the reformed system the vast majority of inquests, as the noble Lord said, will continue to take place without a jury and to be heard by a coroner sitting alone. Coroners are already men and women of independence of mind and increasingly well trained. Under the new regime there will be improved recruitment procedures with the aim of appointing coroners of an even higher calibre. They will be even better trained and, under the leadership of the Chief Coroner, part of a more structured and better organised profession. It is therefore right that they should continue to hear most cases sitting alone and require a jury present only when a clear and demonstrable need for an additional independent level of public scrutiny demands it.
I remind the House, as the noble Lord, Lord Hunt, forecast that I would, that the Bill already contains clear provision at Clause 7(3) to give coroners discretion to summon a jury if they feel there is sufficient reason for doing so, even if the death concerned does not strictly fall into the categories mentioned in Clause 7(2). This is a discretionary power that we expect coroners to make use of in a variety of situations and scenarios as and when they see fit. In addition, we foresee the Chief Coroner issuing guidance as to when it would be expected that coroners may wish to exercise this discretionary power to call a jury, even if the coroner is not legally obliged to do so. There is also the safeguard of the provision in Clause 35(2)(g), where an interested person may appeal to the Chief Coroner if they feel that the coroner should have exercised his or her discretion differently. We therefore think that we have in place under the new regime a structure to ensure that cases that genuinely require it will have an inquest with a jury present.
On Amendment 6, in the name of the noble Lord, Lord Ramsbotham, we see no useful purpose in maintaining the status quo in relation to prison deaths and requiring that all deaths in prison, whatever their cause, should be investigated by way of an inquest held with a jury. If there is any reason to suspect the death was of violent, unnatural or unknown cause, the coroner will have to hold any inquest with a jury. I see no need for a jury inquest for a death from wholly natural causes in a prison hospital, for example, when a similar death, should it occur in a general hospital, would almost certainly not even warrant an investigation, let alone an inquest with a jury.
There would, of course, continue to be an inquest into deaths in prison which do not fall within Clause 7(2)(a). I am in danger of repeating myself, but if the coroner feels that there is a need to call a jury because, for example, concerns about the standards of care, even though irrelevant to the cause of death, emerge from preliminary investigations, then he or she may summon a jury under the discretionary powers outlined in Clause 7(3). It may be the case in future that investigating natural deaths in prison or other forms of state detention is an area on which the Chief Coroner chooses to issue guidance or arrange for further specialist training for coroners.
On Amendment 7, we entirely understand the argument that an inquest into the death of a person caused by an act or omission of a member of the security services should be held with a jury. I am sorry if I appeared disparaging to the noble Lord when we debated this matter last time; I certainly did not intend to be. However, I have to repeat that we are unaware of any such deaths being subject to inquests within at least the last 50 years. That being the case, I remain unpersuaded that there is a need for the amendment. The powers already contained in the Bill will be sufficient to ensure that any inquest into such a death in the future could take place with a jury.
Amendment 9 would retain the provision in the Coroners Act 1988 that requires that an inquest must be held with a jury if,
“the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public”.
We do not support this amendment because of the potential that it contains for substantially increasing the number of inquests that would require a jury to be summoned. This could include, for example, road traffic incidents. It has been argued by some campaigners that almost all road traffic deaths involve issues of public safety and that, therefore, all inquests into them should be held with a jury. At present, this is not usually the case, as many coroners choose to interpret the legislation so as not to include such deaths. In fact, if you were to interpret it otherwise, it could be argued that in very many cases you were predetermining the outcome of the inquest.
Should this provision remain on the face of primary legislation, as this amendment would allow, there are genuine concerns, I submit, that there would be considerable pressure for this criterion to be more widely interpreted and more generally applied, meaning that a jury would be required in a considerably greater number of cases. Obviously, this would have a major effect on the resources required to conduct a substantially increased number of inquests with juries, but it would not, in our opinion, enhance the effectiveness of those inquests.
Turning to Amendment 10, I again reiterate our view that only those cases that genuinely need a further and additional layer of independent scrutiny should take place with a jury. This amendment would mean that there would need to be a jury in all cases where it may be considered that an inquest might find that an act or omission on the part of the state or a public authority or its employees contributed to the death. Given the wide-ranging nature of what could be considered as a public authority, this could mean that, for example, all deaths reported to a coroner from an NHS hospital where the coroner felt than an inquest was required might in future require a jury, as an NHS trust would be considered as a public authority. Having a jury in each such instance where a public authority might be implicated would substantially increase the number of jury inquests, with a consequent dramatic and serious impact on resources.
Amendments 8, 11 and 12 were tabled by the noble and gallant Lord, Lord Craig of Radley. The House will know that currently coroners sit alone for the most part when considering the deaths of military personnel on active service. Our understanding is that, on the whole, the bereaved families support this; they want the coroner to sit on his or her own when dealing with their cases. This has not, however, prevented coroners from successfully carrying out investigations into those deaths and investigating all such deaths with a commendable, if sometimes uncomfortable for the Government, degree of vigour and thoroughness; on occasions, they have passed judgments and made comments that have been critical of parts of government. There is no reason to believe that they do not and will not deal with any less rigour with the deaths of military personnel who have been undertaking training or who are under the age of 18.
As I said, the Bill already contains provisions giving coroners discretion to summon a jury if they feel that there is sufficient reason for doing so, even if the death falls outside the categories in subsection (2). There is also the safeguard of a right of appeal to the Chief Coroner if the family feels that the coroner should exercise his or her discretion differently. Our view is that these provisions are sufficient to enable the coroner to summon a jury when he or she feels that it is the correct thing to do.
On a more general point, if Article 2 is engaged in a particular inquest, there is nothing in the case law of the European Convention on Human Rights that requires such an inquest to be held with a jury. We maintain, therefore, that the state can meet its Article 2 obligations by a coroner sitting alone or with a jury where there is sufficient reason.
For the reasons that I have given, I invite noble Lords not to press their amendments.
I have a question about Amendment 6. If I heard the Minister aright, he said that there was no ground for maintaining the status quo, which, if I understand it correctly, requires that whenever a death takes place in state detention or in custody there shall be an inquest with a jury. Why does he suppose that there is such public confidence in our arrangements for state detention and custody as to warrant departing from the status quo, which has been in existence for a period of years?
As I understand it, in the Bill we are adding to the list of cases in which an inquest with a jury should take place. Clause 7(2)(a) refers to cases where,
“the death was … violent or unnatural … or ... the cause of death is unknown”.
We are adding cases in psychiatric hospitals and immigration detention centres. However, our view is that, if a death in custody is quite clearly natural, there is no need for an inquest with a jury. There would not be one for any other natural death, so there should not necessarily be one for a death in prison. That is the change that we are making in the Bill. We are adding some areas of custody if the death is violent or unnatural or the cause of death is unknown, but we are saying that, if deaths in custody are natural, there does not need to be a jury, although there can always be one if the coroner feels that there should be one.
As I heard him, the Minister was objecting to the amendment tabled by the noble Lord, Lord Ramsbotham, by using the argument that we should not maintain the existing system of a coroner’s inquest automatically when there is a death in prison because—lo and behold—why would we not then want that for every death in hospital? Unless I misunderstood him, that was one of the arguments that he deployed.
Let me just finish the point; the Minister will demolish it, because he obviously thinks that I have got it wrong. The two obvious distinctions between someone who is in hospital and someone who is in prison are, first, that the prisoner has no liberty at all and, secondly, that he is quite likely to be surrounded by people of a violent disposition. The whole set-up of a prisoner dying in prison is totally different from that of a patient dying in hospital.
I agree with the noble Lord: of course there is a difference between prison and hospital. We are saying in the Bill that, when someone dies naturally in custody, there should not necessarily be an inquest with a jury. There will be an inquest, of course, but there does not need to be one with a jury unless the coroner feels that in the circumstances of the case there should be one.
My Lords, to have an efficient and workable system, what is necessary? Let us take the case of a prisoner who dies from old age or illness, where the cause of death is absolutely clear. Is it in the best interests of the coronial system to have an inquest with a jury? Why, in the majority of cases of natural death, should the coroner not decide on the form of inquest? There will always be an inquest when someone dies in custody: the issue is whether there has to be a jury. I repeat that the failsafe here is that if the coroner, in the case of what looks like a natural death, thinks that there should be a jury hearing, he is entitled to have one under Clause 7.
My Lords, I am grateful to the Minister for his reply, and to all those who have taken part in the debate. I am particularly grateful to the noble Lord, Lord Hunt, for mentioning juries in a wider context than I did. I came at this from the understanding that the purpose of a jury in these inquests is to see that incidents of possible negligence are properly investigated. When I was Chief Inspector of Prisons, I saw cases of negligence that led to prisoners dying. They may have died from natural causes, but, looking at the circumstances in which they had been looked after—I am thinking of one case in particular—people must have asked questions about their treatment. Therefore, I can see good reason for changing the rules that have been in existence since the Coroners Act 1988.
On Clause 9, I do not want to refer again to the case of road accidents, which the Minister mentioned. Reading the record of the Committee, it seemed that the argument was effectively destroyed, and I was surprised that it was raised again. I will come back to the question of the discretion of the coroner. Under current legislation, this discretion has frequently been a matter of contention, because it has contributed to inconsistency in practice. That is one purpose of the Bill, and of having a Chief Coroner: to try to eliminate inconsistency, particularly in cases where the death has been at the hands of the state. However, I am grateful that the issues have been raised and beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Amendment 7 not moved.
8: Clause 7, page 4, line 31, leave out second “or”
My Lords, the Minister spelt out a number of safeguards available to the Chief Coroner and to relatives of the deceased in the event that the circumstances of the death of a youth in the Armed Forces raise issues of greater public importance. Those safeguards are extremely important. They are now on the record, and I will not press the amendment.
Amendment 8 not moved.
Amendments 9 and 10 not moved.
Amendments 11 and 12 not moved.
Clause 8 : Assembling a jury
13: Clause 8, page 5, line 2, leave out “six, seven, eight or nine” and insert “seven, eight, nine, ten or eleven”
My Lords, the House will recall that in Committee, the noble Lord, Lord Thomas of Gresford, tabled an amendment aimed at restoring the existing requirements in respect of the minimum and maximum number of persons on a coroner’s jury. The Government indicated at the conclusion of the debate on 10 June that we would come back to the House on the matter. As explained previously, we had proposed a reduction in jury numbers in response to problems experienced in a number of coroners’ districts with summoning jurors. The process is not centralised, as it is in the Crown Court, and we do not wish to create a new administrative burden by making it so. However, there have been occasions when inquests have had to be adjourned, causing unnecessary delay to bereaved families, because of a lack of sufficient jurors to comprise a properly constituted jury. Nevertheless, the Government have listened to the concerns raised by noble Lords in Committee, and to the view of the Joint Committee on Human Rights, and are persuaded by the arguments against a reduction in jury size for a coroner’s inquest. We are happy to agree that the status quo should be maintained in respect both of jury sizes and the number of jurors required for majority verdicts, and to amend the Bill accordingly. I beg to move.
My Lords, I raised these issues in Committee and I am very grateful that the Government have listened, and have conceded the amendment. I have nothing more to say than that, in this respect, the Government are a listening Government—that is not what I normally say.
Amendment 13 agreed.
Clause 9 : Determinations and findings by jury
14: Clause 9, page 5, line 20, leave out paragraph (a) and insert—
“(a) only one or two of the jury do not agree on it, and”
Amendment 14 agreed.
15: After Clause 9, insert the following new Clause—
“Publicly funded legal representation
The Secretary of State shall provide non means-tested funds to ensure that the family of the deceased is legally represented at inquests that engage article 2 of the European Convention on Human Rights by virtue of the Human Rights Act 1998 (c. 42).”
My Lords, the amendment has the support of the Criminal Justice Alliance, which represents some 30 organisations that have been in correspondence with the Secretary of State for Justice on this important issue. I am grateful to the Minister for the opportunity to have a discussion with him prior to our Sitting today, and I hope to hear from him that he has listened to what we have said in relation to the amendment.
I owe it to the House to say something about the purpose of the amendment. In the European Court of Human Rights, in the case of Z v United Kingdom in 2002, the judgment says that there must be a sufficient element of public scrutiny of the investigation into a death and its results to secure accountability in practice as well as in theory. In all cases, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.
In the Lawrence inquiry, Sir William Macpherson emphasised, in paragraph 134 of his report, that:
“The Court considers that the right of the family of the deceased whose death is under investigation to participate in the proceedings requires that the procedures adopted ensure the requisite protection of their interests, which may be in direct conflict with those of the police or security forces”.
In the 2006 report of the noble Baroness, Lady Corston, recommendation six states:
“Public funding must be provided for bereaved families for proper legal representation at timely inquests relating to deaths in state custody that engage the state’s obligations under Article 2 of the European Convention on Human rights. Funding should not be means tested and any financial eligibility test should be removed whenever Article 2 is engaged. Funding should also cover reasonable travel, accommodation and subsistence costs of families’ attendance at inquests”.
In addition to those powerful voices, I refer to what was said by Miss Harriet Harman in March 2008 on the Floor of the House in another place. She said that the coroner system needed to be made fairer for bereaved families and that:
“We need to give bereaved relatives at inquests a real sense of fairness and support”.—[Official Report, Commons, 13/3/08; col. 421.]
She also said that,
“it is important to improve the Coroner Service so that bereaved relatives can get answers to their questions”.—[Official Report, Commons, 20/3/08; col. 1089.]
She said in addition:
“I agree with the hon. Gentleman that if bereaved relatives with no legal representation turn up on the steps of a coroner’s court and find that the Ministry of Defence and the Army have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair”.—[Official Report, Commons. 13/3/08; col. 421.]
I respectfully suggest to the House that the importance of having bereaved families properly represented is always viewed one way. Why is that? It is because inquests that include bereaved families and public authorities, such as the police, the Prison Service or the military, involve highly contentious issues, one of which is often the question of disclosure—a matter that we discussed a little earlier today in the context of intercept evidence. At times it is necessary to make applications for the disclosure of information but the demands of the bereaved families are often at odds with what the state and public authorities wish to maintain. In military inquests, the MoD often raises national security as a reason for non-disclosure or redaction, but sometimes, upon challenge by legal representatives of the bereaved, this turns out to be nothing more than embarrassing or problematic evidence against the state. Therefore, when it is necessary to tease out problems of disclosure and the provision of information, legal representation is very necessary.
However, interested parties may sometimes face criticism. I remind your Lordships of the inquest into the death of James Collinson, a young recruit who died at Deepcut barracks. In that case, two soldiers who were on duty with the deceased at the time of his death were separately represented by independent counsel at the inquest, funded by the taxpayer, and advised by lawyers provided for them by the Ministry of Defence. These were two people who could conceivably be implicated in the death at Deepcut and they had full legal representation paid for by the taxpayer. That is in addition to the Ministry of Defence, which would always be separately represented, again at the taxpayer’s expense.
In another Deepcut inquest into the death of Geoff Gray, members of the family were told by the coroners’ office that did not need legal representation, so they did nothing more than accept that advice. The inquest was over in half a day, during which the bereaved family experienced witnesses being prompted from the public gallery, and there were no disclosure arguments. That is a matter of great concern.
Families that appear at inquests trying to find out what has happened to the deceased person are at a considerable disadvantage if they have no one representing them against the battery of lawyers who are provided by the state not just for the departments involved but also for people who might be implicated. It is quite wrong that they should be in that position.
That is the basis of my argument, but how much would it cost if the provisions set out in my amendment were carried through? The best estimate that we have is from the ministry, which says that the cost of representation at an inquest is about £8,000 a time, and we are dealing with a maximum of 400 cases. I think that the Ministry of Justice itself has suggested that the cost of providing this service would be some £6.4 million, some of which could be recovered under decided cases in the event of a family being successful in recovering compensation as a result of negligence or something else being proved against the department of state. Therefore, the cost of these provisions is not huge.
We come to the question of means-testing. There have been many cases under the present arrangement whereby the Minister in the case of the Army and the Legal Services Commission in the case of the police and the Prison Service have discretion to permit legal aid to be given to bereaved families subject to a means test. Very intrusive investigations have been made, and in some the home of a bereaved family, for example, has been taken into account. In one case, the money that was to be made available to the family as a result of the death of the deceased was also taken into account. We do not think that that is the right way to proceed. If the taxpayer pays entirely for the state departments to be represented, then, for the purposes of equality of arms, one would expect the state to allow the bereaved families not to have to undergo the indignity of means-testing and the taking into account of sums of money which may be very important to them in the position in which they find themselves.
Those are the reasons why all these organisations, fulfilling the demands of the reports to which I have drawn your Lordships’ attention, suggest that the only proper way forward is to provide non-means-tested legal aid funds to bereaved families at inquests. That is the purpose of the amendment, and I beg to move.
My Lords, I hope that the House will forgive me if I rise at this stage. I have spoken to the noble Lord, as he was kind enough to mention, and I am grateful to him, too, for speaking to me at short notice this morning. If the debate has to continue, it has to continue, but perhaps I may say at this stage that in principle we agree that there should be a right to legal aid at inquests into a death in custody or otherwise in state detention of military personnel on active service. In our view, any such legal aid would have to be means-tested, but I am mindful that it would be appropriate to waive that, save in exceptional circumstances. I add a rider that in the case of any inquest into multiple deaths, it would not necessarily be a good use of public funds to provide representation for each bereaved family.
If the House will give me permission, I shall examine the position further between now and Third Reading, and I shall of course be in touch with the noble Lord, bearing in mind his amendment. Obviously I cannot give any guarantees that I will be able to bring forward a suitable amendment at that point, but I shall certainly do my best.
My Lords, I simply want to say what a sensible intervention that was from the Minister. I greatly welcome it. I was about to express my support for the amendment, subject to the usual qualifications, but in the light of what the Minister has said, I warmly welcome his intention to consider the matter further.
My Lords, as my name is attached to this amendment, perhaps I may echo the words of the noble Lord, Lord Hunt. I very much welcome what the Minister has just said. However, I ask that others, including myself, also be involved in the consultations that take place with the noble Lord, Lord Thomas of Gresford. There are things that I was going to say but will not now be saying because of what has happened, and I think that this matter was going to attract support from all corners of the House, where there are extremely strong views about this issue.
My Lords, I welcome the statement from the Minister that we have finally achieved a right to legal aid for bereaved families. I hear what he said about means-testing and that, in appropriate circumstances or in most cases, means-testing would be waived. Our discussions have to centre on the circumstances in which means-testing would not be waived. I certainly welcome anyone’s participation in a meeting to work that out.
I say to the noble Lord, Lord Ramsbotham, that had there been time this morning—I had about half an hour's notice—he would have been included in our discussions. On the basis of what the Minister has said, I beg leave to withdraw my amendment.
Amendment 15 withdrawn.
Clause 10 : Determinations and findings to be made
16: Clause 10, page 5, line 38, leave out subsection (2) and insert—
“(2) A determination under subsection (1)(a) shall not affect the criminal or civil liability of any party and shall not be admissible as evidence of proof of criminal or civil liability in any subsequent legal proceedings; but an inquest is not inhibited in the discharge of its functions by any likelihood of liability being inferred from the facts that it determines in accordance with subsection (1)(a) or any recommendations that it makes.”
My Lords, we move now to another part of the Bill which addresses the outcome of investigations. I refer to another Bill that addresses the issue of deaths in prison—the corporate manslaughter Bill. This House voted for the Prison Service to be included in that legislation and said that any managerial failure that resulted in death should be subject to the conditions of that legislation.
The issue in an inquest is responsibility for death and not liability; it is not up to the inquest to establish that. Currently there is a prohibition on inquests naming persons publicly. Although we think that that prohibition should be retained, a coroner or a jury should be free to describe acts or omissions by the particular public service—and I admit that I speak mainly from experience of prisons—responsible for that death. That emphasises the responsibility aspect of inquests. To protect the parties who might be criticised, the Bill should contain a clause that underscores the fact that a determination of the inquest should not affect anyone’s criminal or civil liability and that a determination should not be admissible as evidence in any subsequent legal proceedings. In other words it would distance the matter from further action once responsibility has been laid.
It is difficult entirely to separate an inquest from all the duties on the state to learn about how deaths have occurred. In its briefing to us on this matter, Inquest has said that Scotland has a much better system. Under its fatal accident inquiry procedures, the sheriff is allowed to determine, among other things, where and when the death and any accident resulting in the death took place; the cause or causes of the death and any such accident; the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided; the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and any other facts relevant to the circumstances of the death.
In an earlier debate we discussed the fact that something that might be applicable in England and Wales was not applicable in Scotland. I have always thought it inexplicable that such clear direction and definition should be available in Scotland but not in England and Wales. I would certainly like to see that in any improved legislation, which this is.
There is also a debate as to whether a coroner may or may not use judgmental words such as “serious” or “unreasonable”. Frankly, that debate is probably not worth having, because the various checks and balances that have been put in place have moved us on from that. All that is needed is merely a clear statement from a coroner that something has happened and that someone is responsible.
On investigations, and bearing in mind our previous brief discussion on the representation of families, I have always been concerned about the attendance of families at inquests. Frequently, they do not know anything other than that a relative has died. They expect an inquest to be an inquiry. They think that they will learn far more than they otherwise might. That is not a fault of the coronial system; that is a fault of the prison system, which does not pass on sufficient information. It is important that the coroners bear in mind the possibility that the families appearing before them are not as well informed as they might expect, or as well informed by the state as they might expect them to be. The families will always expect more to come out. The naming of names is prohibited but I believe that families will feel better served by the system if it is possible to name the acts or omissions that might have contributed to the death. And that is one of the intentions of the Bill. I beg to move.
My Lords, my name is attached to this amendment and I wish to give support to what the noble Lord, Lord Ramsbotham, has said. In a sense we are returning to territory similar to that which we discussed under Amendment 3 and Clause 5 regarding the coroner’s grounds for exploration, expansion and expressing his or her findings. One needs to be careful about other legal interventions, but it seems strange that a coroner—in making his or her inquiries about why a death occurred, what contributed to it and what could have been done to prevent it and, indeed, to avoid other deaths—should be discouraged from venturing into that terrain. This amendment seeks to open up that ground. As the noble Lord, Lord Ramsbotham, said, that should not be a matter of great difficulty, because the situation in Scotland is pretty much the same as that described in these amendments. We need families to feel that there has been proper inquiry and investigation and that the outcome is stated as fully as possible in accordance with the requirements of all the legal processes, whether criminal or civil. My colleagues and I wish to express our support for the amendment.
My Lords, as always, the noble Lord, Lord Ramsbotham, puts a very persuasive case. I appreciate the points made by the noble Lord, Lord Alderdice, and I can see the advantage in seeking to do what he says—to set out what an inquest can and cannot do in relation to findings that could be said to relate to criminal or civil liability. In defence of the Minister—not that he ever needs defending—Clause 10(2) clearly states:
“A determination under subsection (1)(a) may not be framed in such a way as to appear to determine any question of—
(a) criminal liability on the part of a named person, or
(b) civil liability”.
That seems right. The determination of criminal or civil liability for an act or omission on the part of an individual is a matter for separate courts, not the coroner’s court. I would not want to see the risk arise of a trial—possibly, given the circumstances, a very serious trial for murder or manslaughter—being prejudiced by findings at a coronial inquest that is, according to Clause 5, an investigation into who the deceased was and how he came about his death. The blame element—who is liable—is a matter for other courts that apply different rules. I understand the reference made to the position in Scotland, and I share the resolve to ensure that an inquest gets to the bottom of the facts surrounding a death. Everything that can be done to seek out the truth should be done. However, I am cautious about the amendment because I am wary of allowing findings of fact to stray into comment upon matters that properly lie with another court. I am glad that we have had a chance to debate this, and I am looking forward to the Minister’s reply.
Amendment 17, which makes clear that Amendment 16 should not prevent a description of the circumstances surrounding a death, reinforces the criteria that are to be looked at in Clause 5. I expect that we are going to hear from the Minister that that premise is upheld in the Bill, as it should be. I hope that he will be able to reassure us on the correct role of different courts and the independence of coronial inquests.
My Lords, I am grateful to noble Lords who have spoken. We are concerned that these amendments might take the coroner system down the road of expressing opinion and possibly even attributing blame and assigning civil or criminal liability. That is not the purpose of a coroner’s investigation and, in our view, that position should remain. The purpose of the investigation is to establish facts and responsibility, where appropriate; it is not to attribute blame or to decide matters of legal liability. As the noble Lord, Lord Hunt, said a minute ago, that is and must remain a matter for the civil and criminal courts.
I remind noble Lords of a perhaps somewhat painful memory. Noble Lords who have spoken to this amendment might be surprised to hear that, until the mid-1970s, coroners and their juries were not prevented from making reference to criminal liability.
My Lords, I once appeared in a case in which the coroner’s jury sent my client to the assizes on a manslaughter charge. Various procedures were brought into effect, and the Director of Public Prosecutions became involved, but, in the end, no evidence was offered. It was quite something for a young man to be sent by a coroner’s jury for trial.
My Lords, I imagine that it was also quite a moment for his counsel. The case that I was going to refer to was not the noble Lord’s well known case, but another quite well known case, back in 1975, when a coroner’s jury named the missing and—I should say it properly—noble Lord, Lord Lucan, as guilty of the murder of his children’s nanny. There was widespread concern about that, so a possible repeat was prevented by the Criminal Law Act 1977, which excluded the question of criminal liability from the matters to be determined by an inquest. The purpose of Clause 5 is therefore to ensure that the coroners system remains based on an inquisitorial process charged with finding fact rather than apportioning blame or determining liability.
The prohibition on framing a determination that may appear to determine criminal liability on the part of a named person or to determine civil liability is to ensure that the proceedings are fair. An individual or body who might be identified as liable would not have been afforded the safeguards to enable them to defend such a conclusion, as they have no right to call evidence.
My Lords, the emphasis is on the word “determine” whereas the problem in the clause is the word “appear”. The question is not whether the coroner would make a determination of this kind. The problem is that the clause states that he should not appear to make such a determination. Appearance, like beauty, can be in the eye of the beholder, and it can push back considerably how far a coroner may be tempted to go. He is likely to drive far away from the edge of the cliff rather than near to it. If the clause stated “to determine”, we would not be having this debate. The issue at heart is that it states “appear to determine”.
My Lords, I do not think that we are attempting to change the law in this regard. This is what the law has been since 1977, and it has worked reasonably well. Undoubtedly a coroner has occasionally appeared to suggest that he or she might have made a certain finding, but, in the vast majority of cases, coroners know precisely what their role is and we are not suggesting any change to it. We think that, as far as this matter is concerned, the present system works fairly well, which is why we are resisting the amendment.
My Lords, I shall give the Minister an example. In my part of the world, the coroner frequently returns a verdict of pneumoconiosis in respect of miners who have died many years after they were down the pit. That might appear to determine civil liability. The wording concerns my noble friend.
My Lords, the problem with going further than that and making some kind of determination of civil liability is that the person who is identified as liable, or who may appear to be identified as liable, has no right to call evidence or to address the coroner or the coroner’s jury on the facts. Evidence may not have even been disclosed to him in advance. We do not think that this amendment is a sufficient safeguard.
It is clear that a coroner must explore facts bearing on criminal and civil liability and ensure that relevant facts are fully and fairly investigated. Factual conclusions on such matters may be recorded, but in a way that does not infringe Clause 10(2). A finding that there was a failure to act in a particular way does not appear to determine a question of civil liability and would therefore be acceptable. Conclusions of a factual nature directly relating to the circumstances of death are not prohibited.
In relation to Amendment 17, some of the matters these amendments touch on are matters that are far more suited to coroners’ reports to prevent future deaths than to any findings or determinations a coroner or a jury might make. A coroner could quite properly and legitimately give his or her views on such matters in any report to prevent future deaths. We place great store on these reports, which are currently made under Rule 43 of the Coroners Rules. The noble Lord, Lord Hunt, asked me where this is to be found; it is under paragraph 6 of Schedule 5, as strengthened by the Government’s amendments.
We understand the reasons why these amendments were tabled but, in the light of what I have said, I invite the noble Lord to withdraw this amendment.
I am grateful to all noble Lords who have taken part in this debate and to the Minister for his reply. My understanding has always been responsibility, yes; liability, no. That is what I was seeking to enshrine. The Minister mentioned that the inquest is inquisitorial. It is not always seen as inquisitorial, particularly by families who take part. They see it as very adversarial. They are always at the back of what I am saying because this is at the heart of the Bill. They are as anxious as anyone else to find out precisely what has happened and who may have been responsible for any contributory negligence.
However, in view of all that the Minister has said, I beg leave to withdraw the amendment.
Amendment 16 withdrawn.
Amendment 17 not moved.
Schedule 1 : Duty or power to suspend or resume investigations
18: Schedule 1, page 119, line 25, after “(c. 52)” insert “(or section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 42 of the Naval Discipline Act 1957 (c. 53))”
My Lords, the provisions on coroners, investigation anonymity orders, witness anonymity orders and the treatment of convictions in other EU member states include various references to a service offence. This term is defined by reference to the Armed Forces Act 2006, which repeals the existing service disciplinary Acts. That definition is too narrow, and these technical amendments are principally designed to ensure that it is sufficiently broad for those purposes. I beg to move.
Amendment 18 agreed.
19: Schedule 1, page 120, line 11, leave out “an exceptional” and insert “a good”
My Lords, the amendment relates to the part of Schedule 1, on page 120, that largely replicates Section 16 of the Coroners Act 1988, save that it dictates that a coroner can refuse to adjourn an inquest when there are parallel criminal proceedings only when there is an exceptional reason to do so. At present, the test is that there is a good reason not to adjourn. We are really not all at clear about the rationale for this change. When we suggested changes in the previous debate on this, the Minister said that it was working perfectly well. We wonder why there is a change, so our amendment would leave out “exceptional” and reinsert “good”, as it currently is. I beg to move.
My Lords, I cannot add much to what the noble Lord, Lord Alderdice, has said. The noble Baroness, Lady Finlay, tabled a similar amendment in Committee that sought clarification of the use of the word “exceptional”. Again, the Government had a good long summer break and have had time to think about this, so perhaps they can assist the House on what exactly they mean by “exceptional”.
My Lords, Schedule 1 provides for the suspension of a coroner’s investigation. It allows for coroners to continue their investigation if they consider there to be exceptional reasons to do so when there is an ongoing criminal investigation. The amendment would lower this threshold to having a good reason not to suspend the investigation.
As the Government stated in Committee, we must begin with the proposition that it is appropriate for the coroner to suspend his or her investigation if a person is charged with a serious offence connected to the death. Otherwise, the coroner’s investigation could duplicate a criminal inquiry and possibly even impede or lengthen it. In addition, the “exceptional” threshold is the right one, considering that the relevant offence is a homicide offence, a service equivalent, or an offence related to the death in some other way. However, even though the coroner’s investigation may be suspended, matters relating to the post-mortem and the release of the body of the deceased person to families may still be dealt with by the coroner.
Schedule 1 also provides for the prosecuting authority to indicate to the coroner that it has no objection to the continuing investigation. However, coroners are very aware of the importance of criminal proceedings, particularly as part of the bereaved family seeing that justice is done, and will rarely want to continue an investigation in these circumstances. This might be another area in which the chief coroner issues guidance to cover the rare cases in which a coroner’s investigation should continue.
I hope, given this explanation, that the noble Lord, Lord Alderdice, will feel able to withdraw his amendment.
My Lords, perhaps the Minister could explain—to me at least, because I have not understood—the basis of the change. It was “good”; it is now “exceptional”. I understand all the Minister’s arguments, except that he has not, in my view, explained why there is a change of word.
My Lords, in a number of our earlier arguments and discussions in your Lordships’ House—for example, on the inclusion of the Security Service—the Minister’s response was that there has been no instance of a problem of this kind in 50 years. I am therefore a little surprised that he has not taken the opportunity, even when invited by the noble and learned Baroness, to explain when and at what stages there was ever any problem with what pertains at present. He has made his arguments, but he has not indicated in any way where they were alerted to this and why there was a problem. I understand why there might be a problem in theory, but I am at a loss to understand what the difference has been in practice. The Minister was invited to enlighten us.
My hope is that coroners who are used to operating on the basis of “good” will interpret “exceptional” in the light of their experience of “good”, perhaps guided by the Chief Coroner, on whom we are putting yet further expectations. In that light, I beg leave to withdraw the amendment.
Amendment 19 withdrawn.
Amendment 20 not moved.
Amendments 21 to 23
21: Schedule 1, page 120, line 30, after “if” insert “(a)”
22: Schedule 1, page 120, line 33, at end insert “, and
(b) a senior judge has been appointed under that Act as chairman of the inquiry.In paragraph (b) “senior judge” means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court.”
23: Schedule 1, page 120, line 44, at end insert—
“3A (1) This paragraph applies where an investigation is suspended under paragraph 3 on the basis that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12).
(2) The terms of reference of the inquiry must be such that it has as its purpose, or among its purposes, the purpose set out in section 5(1) above (read with section 5(2) where applicable); and section 5 of the Inquiries Act 2005 (c. 12) has effect accordingly.”
Amendments 21 to 23 agreed.
Amendments 24 to 26 not moved.
27: Schedule 1, page 124, line 1, leave out “six” and insert “seven”
Amendment 27 agreed.
Clause 12 : Investigation in Scotland
28: Clause 12, page 6, line 13, leave out from “(c. 52)” to end of line 18
My Lords, in moving Amendment 28, I shall also speak to Amendments 29 and 30 in my name and in that of the noble Lord, Lord Thomas of Gresford.
In Committee, I explained that I had two points of concern about Clause 12. One was the definition of active service in subsection (6), which relied on Section 8 of the Armed Forces Act 2006. This is a most inappropriate definition to use for those who have been killed on operational service, as Section 8 deals solely with the offence of desertion. The Minister agreed, and he has now proposed a new definition of active service in his Amendment 31. Although I welcome this change of heart, I raised a further point in Committee about this clause. Is it right to attempt to draw a distinction between service personnel who were killed or died of wounds while on active service or in training for active service, and other members of the Armed Forces, whose bodies will be repatriated following violent or unnatural deaths overseas and for whom inquests are required?
I remind the House of the Government’s Command Paper 7424, which was published with much acclaim only last year. In this paper, all government departments and devolved Administrations have collectively undertaken to treat fairly all members of the Armed Forces, their families, and veterans. Surely it is a blatant breach of that promise to attempt to draw some dividing line between service personnel who die in one operational theatre and those who die overseas elsewhere. Indeed, the Minister’s letter to me of 22 May, which was placed in the Library, said as much. He wrote:
“The families of service personnel who have died abroad other than on active service are no less deserving of consideration”.
In Committee, I proposed amendments similar to Amendments 28, 29 and 30, which would remove references to active service. The Minister resisted my amendments on the grounds that to accept them would,
“pre-empt the outcome of the independent review of the fatal accident inquiry legislation that the noble and learned Lord, Lord Cullen,”—[Official Report, 10/6/09; col. 732.]
was undertaking. I have since spoken to the noble and learned Lord, Lord Cullen, who I am delighted to see on the Bench beside me, and he most considerately wrote me a note for which I am most grateful. I had his permission to pass the content of the note to the Minister, which I did last Wednesday. The Minister will therefore know what the noble and learned Lord, Lord Cullen, said in his note. He pointed out that legislation for the specific purpose of inquiring into the deaths abroad of Scottish members of the Armed Forces was not within the competence of the Scottish Parliament—defence not being a devolved matter, as indicated in paragraph (9) of Schedule 5 to the Scotland Act 1998.
The note from the noble and learned Lord, Lord Cullen, is clear. This subject is not within his remit. Indeed, he went on to say that, in view of the comments made by the noble Lord, Lord Bach, about pre-emption, to which I have referred, so far as my amendments are concerned, if they fell within paragraph (9) of Schedule 5 to the Scotland Act, they would have no relevance to his inquiry. In so far as they went beyond paragraph (9), they would not be in conflict with the approach taken by the noble and learned Lord in his review. So, pre-emption there is none.
The Minister’s Amendment 31 refers to Section 374 of the Armed Forces Act 2006 with a definition of the word “enemy” to flesh out the meaning of his amendment. This would say that active service means service against all persons engaged in armed operations, against all powers, armed mutineers, armed rebels and armed rioters. But Clause 12(2) goes much wider than active service alone. It includes activities,
“in preparation for, or directly in support of”,
and training for active service. I would contend that any service man or woman on duty is involved in training for, preparing for or supporting service against persons engaged in armed operations—against pirates, armed mutineers, rebels or rioters. That is what armed forces do.
It seems to me that this clause, with the Minister’s revised definition for “active service” in subsection (6), introduces a distinction without a difference. However, by removing the references to active service in this clause, my amendments seek to correct this and be seen to treat equally fairly families of all members of the Armed Forces who suffer an untimely death overseas on duty, whether as a result of being killed in action, dying of wounds or due to some other mishap which proves fatal and requires an inquest following repatriation of the deceased. This would also accord with the heading for Clauses 12 and 13, Death of service personnel abroad.
I understand that Clauses 12 and 13 were rushed in to meet the general concerns of those most affected at the present time of high operational tempo and regrettable casualties. The way in which Clause 12(6) would be revised by Amendment 31, proposed by the noble Lord, Lord Bach, only serves further to highlight the fact that Clause 12 does not appear to meet the requirement to treat all service personnel fairly, nor does it tie in with the heading of this part of the Bill.
For the avoidance of doubt, I am fully in support of the unique and caring arrangements being made in Clauses 12 and 13 for the actual handling of inquests into the deaths of service personnel abroad. These introduce flexibility in the location of the inquest in order to meet the wishes of the next of kin of the deceased who want to attend. That is most important and highly desirable. I commend the Government for that approach, but it must clearly be seen to apply to all service personnel.
On reflection, I hope that the Minister will accept that the inquiry made by the noble and learned Lord, Lord Cullen, is not being pre-empted. To introduce special arrangements for some classification of casualties in the Armed Forces overseas, but not for others, breaches the thrust of Command 7424 to treat all service personnel and their families fairly. Is this aspect not a defence matter and therefore not devolved to the Scottish Parliament? For the rest of the two clauses about the location of arrangements, both Governments are in accord and have wide public support for this arrangement. I urge the Government to accept my amendment. I beg to move.
I support the noble and gallant Lord, Lord Craig of Radley, whose amendments we are discussing, along with government Amendment 31. But I suspect that the noble and gallant Lord has rather stolen the thunder from the government amendment. In saying that I support it, I want to make only a couple of points. First, I am grateful to the noble and gallant Lord for passing a copy of the note from the noble and learned Lord, Lord Cullen, to me. So I have seen it as well as the Minister. I agree entirely with its comments.
My second point I will put by way of a question to the Minister. I seem to remember from my time in social security when I was dealing with war pensions matters the qualification for becoming a war widow had nothing to do with the death on active service of her late husband. It applied to any death on active service or any death in training. Would that not be a far better model for the Government to look at, rather than the more restricted way in which the Minister is doing it? Will the noble Lord confirm that I am right that any death in training would have been sufficient for someone to qualify as a war widow as well as a death on active service? Therefore, a death of that sort would be covered by all the examples given by the noble and gallant Lord, Lord Craig of Radley.
My Lords, we were somewhat surprised that the definition of active service was taken from the definition of desertion in Section 8 of the Armed Forces Act 2006, which we debated at length in this House. One might say that the Government have shot themselves in the foot over that one. Accordingly, the amendments proposed by the noble and gallant Lord, Lord Craig, are fully deserving of support and we support them.
The amendments in the name of the noble and gallant Lord, Lord Craig, concern the scope of the Bill’s provisions for fatal accident inquiries in Scotland into the deaths of certain service personnel abroad. Perhaps I may start by saying how grateful I am for the noble and gallant Lord’s support in general for Clauses 12 and 13 and what they represent. As the noble and gallant Lord has said, Clause 12, in conjunction with the amendments to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 in Clause 45, provides for fatal accident inquiries to be held in Scotland into deaths abroad of service personnel on active service.
We added these clauses to the Bill in the other place to respond to calls from service families in Scotland, from MPs and from MSPs to make provision for families in Scotland to attend fatal accident inquiries into deaths which have occurred on operations in Afghanistan and Iraq. This means that in most cases such families will no longer need to travel long distances to England for an inquest. Clause 12 seeks to address that human issue. Clause 12 arises out of an agreement reached by the UK Government and what is now called the Scottish Government. Our argument is around that agreement and whether it would be responsible to unpick that agreement, which is in effect what we would do unilaterally if this amendment were to be passed. Amendments 28, 29 and 30 would remove the requirement for the personnel covered by this clause to have been on active service or accompanying those on active service when they die, so that the Lord Advocate could permit a fatal accident inquiry into the violent or unnatural death overseas of any service personnel.
When considering similar amendments in Committee, I explained that I understood that Scottish Ministers would consider whether the Bill’s provisions should be extended to cover the deaths of service personnel which occur in non-operational circumstances as part of their wider consideration of the recommendations of the noble and learned Lord, Lord Cullen. Noble Lords will remember that the noble and learned Lord’s review of fatal accident inquiry legislation in Scotland is due to report later this year. His review is, of course, concerned only with devolved matters; and therefore will not relate to fatal accident inquiries into deaths of Armed Forces personnel.
I agree with the noble and gallant Lord, Lord Craig, that we are not pre-empting the report of the Cullen inquiry, but we are pre-empting the Scottish Government’s consideration of that report. It is for the Scottish Government—whether we like it or not—to consider what changes to make to the legislation governing fatal accident inquiries following the Cullen inquiry.
I remind the House that the provisions in Clause 12 seek to address a specific issue that has arisen as a result of our Armed Forces engagement in operations in the two theatres of Iraq and Afghanistan. The clause reflects the terms of an agreement between the United Kingdom Government and the Scottish Government on how best to respond to representations from service families. We are talking to the Scottish Government. The provisions in the Bill relate to the deaths of Armed Forces personnel on active service, and are the outcome, I emphasise, of prolonged negotiations between my department, the Ministry of Defence, the Scotland Office and the Scottish Government.
Speaking from this Dispatch Box, I cannot simply throw out of the window our agreement with Scottish Ministers, but I readily agree to have further talks before Third Reading with the Scottish Government. I cannot promise to change our position, but I would like to see what is possible. Anyone in government would agree that we need to bring Scottish Ministers with us on this issue, because, ultimately, the circumstances in which there must be a fatal accident inquiry in Scotland will be a matter for them. That would be true even if we were talking about an agreement made with an unfriendly Administration or Government. It cannot be for us to unpick something that has been agreed between Governments because it happens to suit us.
I invite the noble and gallant Lord to withdraw his amendment today. I will keep him fully informed of how the discussions go with the Scottish Government. If they are getting nowhere, of course he will put down his amendment at Third Reading and, no doubt if we still resist it, take it to a vote. However, today I ask him for a little further time to try to see if we can come to an agreement with the Scottish Government, with whom we have an arrangement on this matter. I invite him to desist from asking the House to express its opinion.
As the noble and gallant Lord was kind enough to say, government Amendment 31 responds to a concern raised by him in Committee about the definition of “active service” in Clause 12(6). That subsection cross-refers to the definition of “active service” set out in the Armed Forces Act 2006—a section which deals with the offence of desertion. The noble and gallant Lord argued persuasively—as he always does—that it was inappropriate to use that source definition for those who have been killed on operational service, serving their country. The noble and gallant Lord suggested that, rather than cross-referring to the Armed Forces Act, we should instead set out the definition of “active service” in full in Clause 12(6). That is exactly what we have done in Amendment 31, which places the definition of “active service” on the face of the Bill. I am grateful to the noble and gallant Lord for raising this issue, and I hope that our amendment will be welcomed in due course.
I am grateful to all noble Lords who have spoken on this. I remind the House that I raised this issue in June and it has been clear for four and a half months that the use of the phrase “active service” was not satisfactory.
To be asked now to withdraw the amendment with a couple of weeks or so to go before the House prorogues and be led to feel that this will be resolved in that time is highly unacceptable. Defence is not a devolved issue. The agreement in Clauses 12 and 13 about where the inquest should be held is widely accepted and I do not see that moving this amendment in any way detracts from that. I wish to test the opinion of the House.
Amendments 29 and 30 not moved.
31: Clause 12, page 6, line 37, leave out from “service”” to end of line 38 and insert “means service in—
(a) an action or operation against an enemy (within the meaning given by section 374 of the Armed Forces Act 2006 (c. 52)),(b) an operation outside the British Islands for the protection of life or property, or(c) the military occupation of a foreign country or territory.”
Amendment 31 agreed.
Consideration on Report adjourned until not before 8.27 pm.
Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009
Motion for an Humble Address
My Lords, it might be helpful if I were to outline briefly what the regulations do. Under the HFE Act 2008, the maximum period for which gametes or embryos may be stored was set at 10 years. The regulations before us replace regulations approved in 1991 and 1996 and provide for the circumstances under which the storage period for both gametes and embryos may be extended beyond 10 years. The new criterion for extension is that a person, as a result of medical treatment or a medical condition, has been rendered, or is likely to be rendered, prematurely infertile. In addition, the group of persons able to avail of extended storage is wider than before. Up to now, an eligible person has been either a man or a woman as provider of sperm or eggs, or a woman receiving treatment at an IVF clinic who requires an embryo to be implanted in her in order to conceive. In the future, “eligible persons” will be extended to include people who need to use donated gametes or embryos or a surrogate in order to conceive.
There is also a change to the maximum extension period. Under the existing regulations, gametes or embryos may be stored until the gamete provider or woman to be treated reaches the age of 55. In the regulations before us, the age limit is replaced by a time limit; namely, a maximum storage period of 55 years. After the initial storage period, an extension may be granted for a further period of 10 years, provided that the premature infertility criterion continues to be met. Additional 10-year extensions would then be permissible after that, subject to the same proviso.
I have called this debate because I believe that these regulations take us into ethical territory which, as far as I am aware, has not hitherto been the subject of parliamentary scrutiny. It is ethical territory which, in my opinion, should concern us. There are two main issues that I want to raise. The first is the legal scope created by these regulations for the intergenerational transfer of gametes or embryos. The second is the green light which the Government are apparently giving to the idea of a person or a couple entering into parenthood at an advanced age. When the HFE Act 2008 was being debated in another place, the case was raised of a mother wishing to store her eggs in order to be able to donate them in future to her infertile daughter, who had been born with Turner syndrome, which is a chromosomal disorder that affects about one in 2,500 girls and which almost always entails infertility.
Under the previous regulations, extended storage of gametes or embryos is prohibited if they are intended for donation to another person. That prohibition is lifted in the regulations now before us. There are several consequences of that, but the one I want to focus on is the kind of case cited in the Explanatory Note, in which a mother with a prematurely infertile daughter, born with Turner syndrome, wishes to put her own eggs into extended storage for her daughter’s future use. It seems quite extraordinary that the department and your Lordships’ Merits Committee have nowhere explicitly spelt out, let alone discussed, the implications of this. It means that the infertile daughter would give birth to her own half-sister or half-brother. The provider of the egg would at one and the same time be grandmother and genetic mother of the child so produced. Furthermore, if the mother of the infertile daughter were to use her own egg to create an embryo, which was then stored for her daughter’s eventual use, the daughter would be both the mother and the full sister of the child so produced.
Noble Lords may react in different ways to that idea but, for my own part, I struggle to come to terms with the assumption implicit here that a confused genetic identity of this sort has no impact on the welfare of the child. On the contrary, the impact on the child’s psychological welfare is potentially very significant, when they realise in adulthood who exactly they are. There are also societal implications. It is not accidental that marriage between a woman and her son-in-law is legally prohibited in this country. The origins of this prohibition lie in the Old Testament, but the rationale behind it has to do with the cohesion of society and the undesirability of destroying the traditional structures of kinship. The more one muddies these relationship waters, the more the confusion about the extent of consanguinity in any particular relationship and the more risk there is of genetic abnormalities occurring in children. These are the reasons why we have the Marriage Act in this country, and I do not think that we can simply nod through a set of regulations that have the effect of driving a coach and horses through established societal norms of this significance. As far as I am aware, there is no guidance by the HFEA relating specifically to consanguineous donation of gametes or embryos in the context of the requirement to consider the welfare of the child. That seems to me a very bad omission.
When the Minister was kind enough to facilitate a meeting for me last week with departmental officials, the answer that they gave to me when I raised these issues was that intergenerational donation of gametes and embryos is permitted at the moment. All the regulations do is to allow it to happen in a wider range of circumstances. Frankly, I was surprised by that answer; for a start, I do not believe that we have any data to tell us how many or how few cases of intergenerational transfer there have been up to now. The central point is surely that the kinds of situation that Parliament originally envisaged when it considered permitting the extended storage of gametes or embryos were those in which the gametes or embryos were intended for the person’s own use. Extended storage of gametes and embryos for someone else’s use was made explicitly illegal.
I have not been able to find any reference in Hansard to a debate in either House at any time in which the ethical implications of mother-to-child donation of gametes or embryos or, for that matter, any other donation between close relatives, has been discussed. It may be true that the 1991 and 1996 regulations permitted such donations by default, but it is quite another matter for Parliament to approve regulations whose express purpose is to facilitate them. I therefore need to ask the Minister whether she will take steps to request the HFEA to give further consideration to the ethical implications of intergenerational and interfamilial donation and to drawing up specific guidance relating to it.
Unfortunately, while counselling is offered whenever IVF treatment is being contemplated, that offer does not have to be taken up. On the other hand, there is a requirement that any treatment should take place only with informed consent. Personally, I would argue that fully informed consent is impossible in this area without an appreciation of the moral hazards involved. The fact that relatives donating gametes or embryos may have altruistic motives does not make such donation ethically or socially desirable.
The second situation that these regulations apparently aim to facilitate is that of elderly parenthood. As I mentioned, the criterion for granting an extension of the 10-year storage period is that the person concerned is, or is likely to be, prematurely infertile. No definition is given of what “prematurely” means in practice. Indeed, the Government have studiously avoided any attempt to give one. For a woman, it may be thought that 55 represents about the limit of natural child-bearing age. For a man, I doubt whether there is any medically agreed limit, since men have been known to father children well into their 80s and even their 90s. Only one doctor’s opinion will now be needed to certify that the person is prematurely infertile; the scope for subjective judgment here is wide. We are therefore looking at very different set of possibilities in these regulations from those which have obtained up to now, with the automatic cut-off of age 55. I quite appreciate the reasons why, for a man, it was felt that the age limit was inappropriate. Up to now a man aged 55 wishing to avail of extended storage of his sperm has been unable to do so, which is clearly unfair and arbitrary. But given that the rules need changing, the first question to ask is what the reason is for choosing an across-the-board time limit of 55 years. Why 55?
Under these assumptions, an infertile woman, aged 53, whose eggs had been in storage for 30 or 40 years, could credibly claim that she was prematurely infertile and therefore eligible to have her eggs kept in extended storage for another 10 years, well beyond normal child-bearing age, at which point she might choose to have a child by surrogacy. She could do the same with an embryo. An infertile man in his mid-70s could credibly make a similar claim as a reason for storing his sperm. If that kind of request is not to be ruled out of court altogether, under what circumstances should it be granted? What are the questions that a clinic should ask itself? As I have said, there is a legal requirement to consider the welfare of the potential child, including the child’s need for supportive parenting, but what exactly does that consideration entail? The woman or man making the request might well be viewed as someone highly likely to be a supportive and loving parent. Does that mean that their age should be regarded as immaterial? The fact that the Government have blithely inserted a 55-year maximum time limit into these regulations would seem to suggest that it is immaterial.
Paragraph 29 of the evidence base document published by the department refers to the premature infertility test and makes the claim:
“This test will prevent people from storing gametes or embryos after the average natural childbearing age”.
That statement is simply not true. The regulations as they stand would allow people to be granted an extension of storage to a point well beyond natural childbearing age without any check, other than the test of premature infertility.
It is only very recently that Parliament voted for the maximum storage period for embryos and gametes to be set at 10 years. It is therefore, to say the least, a surprise for us to be considering a maximum limit of 55 years so soon afterwards. Indeed, it is not at all satisfactory in my opinion that such radically different rules with the ethical implications that they carry should be introduced by means of a negative instrument. I should like to hear from the Minister whether the HFEA has discussed the issues to which I have referred, and whether it has considered issuing guidance on the matters that clinics should take into account when presented with a request for extended storage by an individual who is, or soon will be, beyond the average age for childbearing or initial parenthood. This matter should not simply be allowed to go by default or left entirely to the discretion of individual clinics. If there is a policy either to discourage or encourage elderly parenthood for those who are deemed prematurely infertile, we are entitled to know about it.
I wish to make one final point before closing. During the passage of the 2008 Act, we debated the issue of saviour siblings—embryos created with a genetic profile designed to enable a brother or a sister to receive treatment for a fatal or serious condition. At the time I referred to this idea as being on the cusp of ethical acceptability. I still believe that. The regulations would allow a saviour sibling embryo to be kept in extended storage for 55 years, subject only to one or other parent having become prematurely infertile or being likely to become prematurely infertile. Having thought about this, I can envisage no circumstances in which such storage could be ethically justified. Why are the Government allowing it?
Looking at the regulations, I think that what is at stake here is the standing and credibility of our systems for delivering assisted conception in this country. In my judgment, that standing is not assisted by what is effectively a complete absence of ethical way-marking posts laid down by Parliament or even by the HFEA as the proxy guardian of ethical standards in this area. Will the Minister take steps to rectify that? I beg to move.
My Lords, first I apologise for arriving in the Chamber a few minutes late. I very much support the noble Earl, Lord Howe. I put my name to the Prayer to Annul and then gave way to the noble Earl to allow him to make the first speech. I was very glad to do so because he has done most of the work and I agree with everything that he has said.
I am a member of the Merits Committee. When the issue came before us, we viewed it with considerable concern but, perhaps in defence of the committee for the brief word of criticism of it, it is fair to say that it is our practice to be cautious in our comments. Indeed, the facts speak for themselves, and we raised the issue with this House as a matter of public interest, which it clearly is. I am extremely concerned about the proposal for 55 years. It sounds like a Rip van Winkle story. What will the person be 55 years after the embryo has been created to the moment that the baby is born? There is an element of the unnatural about it and that concerns me very much.
I have two main points to make. One concerns the medical implications. The first point, as the noble Earl said, is that it requires the opinion of only one medical practitioner, but as far as I can see it does not even need the medical practitioner to see the person who is said to be prematurely infertile. All that is required is a written opinion, which can be done on the papers. That is a very unsatisfactory method. One has to ask whether there has been any animal research on keeping gametes or embryos to see what they are like after 55 years, or even after 40 years. I suspect that the problem is not only in the freezing but the thawing. What will be the position when the embryo or gamete—particularly the embryo—is thawed as late as 40, 45 or 50 years on? We are in uncharted territory. As the noble Earl said, we have moved from five to 10 to 55 years in one go. One might have thought that we would move from 10 to 20, or even to 30, but we have moved to 55 without the medical knowledge. Very distinguished doctors, many of whom are in this House say that they do not know that there is very much difference between 10, 20 or 55 years, but if I may respectfully say so, they do not know. No one has been born after 55 years so the medical problems may be very serious, and it will be after the lifetime of quite a number of Members of this House.
The other thing is the practical considerations. I had the misfortune to try an extremely sad case when couples A and B had their gametes switched. Two children who turned out not to be white were born to an all-white family because they had the gametes of Mr B who came from an ethnic minority. They were twins so six people were damaged: the white family with non-white twins; the black family who never had any children; and the children themselves who were mixed race in a family who adored them but found it difficult to come to terms with what had happened.
Those were mistakes that happened on the day that the families went to the clinic. What sort of tracking will we have over anything up to 55 years? There will not be the same personnel in the clinics and the opportunities for mistakes and for not being as efficient as might be expected stand out. The noble Baroness, Lady Deech, who is not here at the moment was particularly anxious that I should raise those two points not only on my own behalf but on her behalf, bearing in mind that she was the first chairman of the Human Fertilisation and Embryology Authority.
The second chairman. I am grateful to the noble Lord, Lord Winston.
The noble Baroness, Lady Deech, is as concerned as I am about the practical as well as the medical considerations. To move from 10 years to 55 is not proportionate to the need to store. There are human rights implications for those who are unlucky enough to be unable to have children themselves, to be able to store perhaps for their own future or that of their daughters or, possibly, sons. But there should be a proportionate limit on how long this should be for families who have the right to respect for family life under the European Convention on Human Rights.
As the noble Earl, Lord Howe, said, there are a considerable number of loopholes in the proposals for saviour siblings, which I shall not go into as I would waste the time of the House. As only one of the couple needs to be prematurely infertile, one could easily be 40, 45 or 50 and the other might be considerably older. Although the clinic will give advice as to suitability, it does not have the right to say that the couple who wish to have the child are unsuitable because of age. That is another very difficult matter. I do not think that the sympathy one has for the unhappiness, distress and unfairness of life that some people are unable to have children should be allowed necessarily to sway the other situation on whether 55 years is right. This is a very unsatisfactory increase and I hope that the Minister will reconsider whether this is the appropriate way to go forward.
My Lords, when I first learnt of the proposal outlined in these regulations, I could not believe it. It seemed reasonable that the 2008 Act should set down a period of 10 years as the maximum time embryos and gametes could remain in storage. Today we are being asked to change this—not to 15, 30 or even 40 years, but to 55. That is a dramatic suggestion; it has all kinds of possible implications and it is very worrying that Parliament has spent no time considering the wisdom or rightness of it. Without today’s action by my noble friend we would not be debating it, although perhaps a lifeline might have been thrown from elsewhere.
There are many questions which need to be answered. It seems that the only reason that this step is being contemplated is because an eight year-old girl is suffering from Turner syndrome which, we are told, will render her infertile or might do so. I understand, and my noble friend Lord Howe has confirmed this today, that the figures for Turner syndrome are about one in 2,500, so the percentage of girls born with the condition is in the order of 0.05 per cent. In other words, only one out of every 2,500 girls has the condition. Are we changing the law on these grounds? No; it is fair to say that other diseases, such as cancer, can cause infertility, but I have no knowledge of what percentage of children are likely to get cancer at an early age.
How can anyone say that the children who may suffer from these problems will, when they are older, want a child anyway? By no means every woman wants a child; many do not and, given the figures that came out today, some may be persuaded not to. In any case, the situation would not be a problem for 20 years or possibly more. The reason we are here tonight is that if the time for storing her mother’s eggs were to be only 10 years, it would not be sufficient to allow the mother to become the daughter’s donor. It is on that basis, I understand, that this proposal is before us.
However, that cannot be said to be the end of the argument. Why does it have to be the mother who donates? There are hundreds, if not thousands, of women who have children today by IVF. There is obviously a steady supply of embryos and gametes without using old ones which have been in storage for so long that no one really knows how safe they are. The noble Lord, Lord Winston, whom I am delighted to see in his place, and whom we all admire for his work, is the acknowledged top expert in this field. He is on record as warning that there may be medical risks to the child if frozen eggs are used to make the embryo. He said:
“With regard to egg freezing, the situation is possibly much more serious. Very few animal studies have been done, and very few humans have been born—I am not sure whether any of the children born are yet more than three or four years old”.
I hasten to say that the noble Lord has made it clear that he would not ban egg freezing in the circumstances we are considering, but he is clear in his warning that there may well be risks to the child.
The question we face is whether this is wise or necessary. I still cannot see why it is necessary to elongate the storage period for so long. Surely an eight year-old would make up her mind on the matter before she is 63. Is it really sensible to encourage the birth of a child for whom its father is the father but whose mother is the grandmother and whose aunt is the woman who bore her?
Under the law today, all children have a right to know the details of their birth origins. Would it not be extremely puzzling, not to say worrying, for a child born from such an extraordinary mix of relations and ages to learn of that kind of background? It is the stuff of nightmares. This is far from a simple matter. Generations to come will want to know that we looked at all possible outcomes and discussed every reason and counter-reason for our actions today? We must not let them down.
My Lords, I thank the noble Earl, Lord Howe, for giving us the opportunity to discuss this complex matter today. I am sorry that my noble friend Lord Alton of Liverpool is not in his place; he is having an operation on his back.
As president of the Spinal Injuries Association, I can say that it can be very helpful for people who break their necks and backs, many of them young men who may lose their sexual powers and become impotent, to have their sperm taken while it is still fresh and stored so that it can be used when needed. For people who have cancer and other conditions which may make them infertile, this legislation may also be helpful. However, keeping eggs and sperm for 55 years seems a long time.
The loopholes relating to extended storage include the fact that no age is given for the normal limit for childbearing, and therefore there is no line against which to measure “prematurity”. A full 10-year extension can be granted on the basis of the person being certified as prematurely infertile on any day within the existing 10-year storage period, and the medical practitioner does not have to certify that they will be prematurely fertile for the whole of the subsequent 10-year period. Only one of the persons whose gametes are used to make an embryo needs to be classified as prematurely infertile or likely to become so. The other person whose gametes made the embryo may be well beyond childbearing age but would still benefit from the extension granted to the partner. For example, a man could potentially be granted a 10-year extension in his sixties or seventies; his wife may be of a similar age but they could still potentially have a child, via surrogacy if necessary. A single medical practitioner simply has to give a written opinion that the person is prematurely infertile or likely to become so on the day they are examined; a full 10-year extension would then be given, subject to the 55-year maximum. The individual medical practitioner determines not only whether the person is infertile, but also prematurity. There are genuine differences of opinion in relation to normal childbearing age, particularly in regard to men.
Treatment would then, in theory, be subject to the “welfare of the child” provision. However, considering that the regulations were drafted to allow young women to give birth to their half-sister or half-brother, where the grandmother would be the real mother, the welfare of the child provision seems rather meaningless. It is unlikely that it would be a sufficient safeguard in the case of elderly people being able to have children.
As this is an ethical matter, it is a pity that no right reverend Prelate will be speaking tonight. I hope, in the interests of future children, that these regulations can be improved and made more acceptable for everyone concerned.
My Lords, I speak as someone who is no scientist, nor a philosopher, nor a jurist, but as a Member of your Lordships’ House who senses that we may be looking at an issue that has not been subject to proper parliamentary scrutiny in another place—and, were it not for my noble friend’s excellent Motion, would have had no proper scrutiny in your Lordship’s House, let alone any full discussion by the general public. It is easy to sneer them away, particularly in the scientific community, but the general public have perfectly proper ethical concerns.
Mine are twofold. First, I instinctively distrust the thought of scrambling the generations—indeed, to use shocking language, I dislike it intensely. However, these points have been very well made by my noble friend Lord Howe from the Front Bench and, if I may say respectfully—to use the argot of the trade—by the noble and learned Baroness, Lady Butler-Sloss, and, indeed, by the noble Baroness, Lady Masham, to whose excellent speech we have all just listened. In the interests of time, I shall not elaborate on or repeat what they have said, because we have only a short debate.
The scrambling of the generations is a purely utilitarian approach to the problems of humanity. That is my first reason for disliking these regulations. My second, to which I shall speak a little more, is that they also have an equally utilitarian, nay almost casual, disregard for the later welfare of those who have been born in this way. There is absolutely no concern expressed—not by the department, the Government or anyone else from officialdom—for the welfare of these children, once they find out that the person they thought was their mother was also their half-sister, and that the person they have happily been calling Granny, they should actually have been calling Mummy. I do not think that has struck home at all, but it is true.
There is, perhaps, an intention by the Government to prevent children born in this way, by regulation, learning about their background and from whence they have sprung. I am sure that the Minister will, with her characteristic openness, wish to say “Yes” or “No” to the Government’s intentions about transparency, and whether they intend to move to prevent a child from knowing that they came as someone who has been born through scrambling of the generations.
Also, the Minister cannot deny that the Government are making absolutely no provision to deal with the seemingly certain emotional distress for children, if they find out that they have been born in that way. I have tried to think about their psychological confusion. If I had suddenly found that out as a teenager, I would have fallen prey to it, just like that, and to the identity crises on stilts that would surely follow—born, as they were, as the result of what seems to be a developing, full-on Eugenics Society policy from the Government.
I have two points with which to conclude, in the interests of time. The Government seem to have given no thought whatever to what to do after creating an open door to the manufacture of genetic backgrounds. Those may indeed be within, first, hitherto legally prohibited degrees of relationship and, secondly, there is the possibility of unhealthy relationships developing within the family. I do not criticise the Minister, as I shall get straight answers to these points, but that is what these regulations do. I really would suggest, with respect to the Minister, that the Government should take these regulations away, think again, allow a proper public debate and bring them back to the House in a more seemly fashion.
My Lords, I listened with great care to the speech by the noble Earl, Lord Howe. He made quite a complicated speech and I may miss some of the points that he made, for which I apologise. He raises a few issues which it seems rather surprising that he has not raised beforehand. First, however, I was sorry to hear that the noble Lord, Lord Alton, is unwell. We have been adversaries over this issue for a long time, but we are certainly not enemies, and I hope that he is better very quickly.
My first point is that nothing in this particular aspect of the legislation changes the possibility of older women being treated. There is no specific area of guidance for that. It is still technically possible, and will be under law, to transfer a donated egg to a woman who is of a particular age unspecified in the Act of Parliament. That does not change, and it is actually a far more likely problem with in vitro fertilisation and might well be something that your Lordships would view with some alarm. The use of an egg which has been frozen for a long period under these circumstances would clearly be a much rarer event. It is not really likely that it would happen often; it might happen more often with sperm, because sperm are relatively easy to store and have certainly been stored for this length of time in the past.
The issue of transgenerational embryos is a tricky one, and I understand and recognise the concern of a number of people who have spoken against such transfers. The problem is that we do not really have evidence—although the noble and learned Baroness, Lady Butler-Sloss, made an impassioned speech on this—that this is necessarily harmful to the welfare of the child, providing that there is no secrecy and that it is done with openness, as it has been in a number of parts of the world. For example, I believe that it was first done in South Africa some 10 or 15 years ago. There is an issue, then, about always keeping this kind of thing under surveillance, but again, that is quite possible without the storage of embryos or sperm. That can always happen, and the storage aspects are irrelevant to this, for they simply mean that you could do that for a longer time afterwards.
The actual problem that we have to contemplate is one that we tried to deal with in discussing the Bill as it went though Parliament; that is, the issue of secrecy. Now, there is something of a misapprehension here about premature fertility. Your Lordships have, perhaps, forgotten that it is possible to be prematurely infertile at the age of six months. It is not just a question of Turner syndrome—although, to the noble Baroness, Lady Knight, I must say God forbid we should not have compassion for the rare cases that, like that syndrome, affect a few children, for they are as deserving of our compassion as anyone else. I accept that it is quite a rare event, but there are many other instances where a child will be made infertile, particularly by deliberate medical treatment.
Increasingly, cancers are treated by heavy radiation or toxic drugs that destroy their gametes, and if those gametes can be stored at the age of two or three—an ideal time biologically, as it turns out—then that is what the 55-year limit protects. You might say that 55 years is a long time, but if you actually think about it logically it is not. Certainly, men of 55 are capable of having another child, and generally still consider that they might wish to.
We are now living at a time that is very different from even 20 years ago. A paper was published in the Lancet two weeks ago by Dr Christensen from Denmark. His paper is a beautiful piece of serious mathematics, which I do not think anybody doubts. It shows that, of the children born in the last decade, more than half will have a life expectancy of greater than 100. Our society is changing and people will work for much longer; it is inevitable. People will have quite different recreation. Many aspects of our society, including pensions, will have to change. It is quite feasible that women may wish to bear children, perfectly acceptably, a little later in life. It is possible, therefore, that this is something that the very occasional woman in her middle age might want to consider, though not necessarily at present.
What this has done is simply to take a compassionate look at all possible opportunities, with wisdom to the future. It is clearly not going to be a common occurrence. British statistics tell us that very few women over the age of 50—or even 45—request treatment for infertility. There are a few. They are generally, of course, women who are taken very carefully through the process. I am surprised that your Lordships are concerned about the fact this should be a matter for just one doctor’s opinion. That, to my mind, does not make sense. As far as I am aware, in legislation, the only times that we require two practitioners are, first, if we are committing somebody after 30 days because they are mentally unfit; and, secondly, for an abortion under the Abortion Act 1967. Medical treatments are not performed with multiple doctors taking decisions. I can say for certain that it is quite possible for five or six doctors who see a patient to misdiagnose premature infertility. I have seen it happen. Mistakes can always be made. Indeed, I have foolishly made that mistake from results after other doctors have made that comment, and then a patient has got pregnant.
I listened carefully to what the noble and learned Baroness, Lady Butler-Sloss, said; she said that this was unnatural. I do not wish to take issue with her because she is one of the wisest Members in the Chamber. However, I have to say that the whole procedure of in vitro fertilisation is unnatural. Taking an antibiotic is unnatural. Medical treatment is not natural. What we try to do with medical treatment is often a compromise; it is an attempt to find something that preserves and maintains the sanctity of life in whatever way we feel is appropriate. The noble Baroness also mentioned—and I fear I have to disagree with her—that there has been no animal research on embryo freezing. There has been, over a long period. Dr David Whittingham, who first froze embryos in the mouse over 30 years ago, regularly took tranches of embryos from that store every five years to examine the changes in them and then transfer them to the mouse uterus. Over 30 years he never found any change in their fertility.
It is perfectly true, as the noble Baroness, Lady Knight, said, that I am concerned about the freezing of eggs. Indeed, I am quite concerned about the freezing of embryos. However, the evidence from my laboratory is nothing to do with long-term storage. Once in liquid nitrogen, the molecules hardly move at all. The changes are, on any scientific basis, bound to be very slight. There may be the most remote risk from background radiation, but Dr Whittingham’s experiments did not show any such risk, which is something he tried to elicit. No, the problem with embryo freezing and the reason why I am concerned, particularly about egg freezing, is that the process that we use may cause epigenetic changes immediately in that gamete. That is something that we will have to explore and we need to continue to take under surveillance. This is something, of course, which should be done in our society. Any responsible medical society should try to improve the quality of follow-up to do that. That has not been part of the Act of Parliament, but maybe it is something that we should look at.
Furthermore, I am puzzled about introducing the issue of switching embryos. The noble Baroness mentioned the noble Baroness, Lady Deech. The switching of embryos can, of course, occur at any time, but I do not think that there is any evidence that the safeguards for long-term storage in proper laboratories, which are regulated by Human Fertilisation and Embryology Authority, are likely to be at any greater risk at any time simply because storage is long-term and staff have changed. Staff change in many in vitro fertilisation units at yearly intervals.
I have to take issue with the noble Lord, Lord Patten. The scientific community cares passionately about ethics. Indeed, if you look at the literature on the ethics of in vitro fertilisation, you will find that the majority of papers which take account of ethical issues have been published by practitioners in the field, often, but not always, after consultation with ethicists.
Finally, even if we decide that longer-term storage is not possible, there is no doubt that there are a number of women who are requesting storage for longer than 10 years at the moment. I get e-mails—very pathetic ones—from women whom I no longer treat, but who have run out of time and whose circumstances would still be appropriate for having a child. Nobody here would doubt that. In cases of donor treatment, they sometimes want to have the same donor as a parent. That is not unreasonable; I know a number of patients who have wanted that. There is a risk that we might destroy that. Our biggest problem, and the concern that we should be addressing, is that when we start to have very punitive legislation, we have seen that, in practice, these patients go overseas. Once they do so, the very problem to which the noble Lord, Lord Patten, referred—the question of secrecy—is much more likely. In fact, if you prevent this practice, you will increase secrecy of parentage—exactly what you do not want to see. I beg noble Lords to think about that if they decide to press a Division on this Motion, which I hope they will not do. Also, the other problem that we are very concerned about is that we know that when women and families go overseas, they are exploited and not cared for as well as they would be under the regulations which Parliament has so wisely enacted in this country.
My Lords, I wonder whether, under the rules of debate, I might be permitted to make sure that the point I was making was clearly understood. I am looking at the rules of debate and I think I am allowed to do that. Very briefly, I was not criticising the storage or the limit. It was the 55 years of storage that I was concerned about. Having read what the noble Lord, Lord Winston, had said, there has, as far as I know, been no work done beyond 30 years. That was the point that I was making; I think I may have been misunderstood.
My Lords, very briefly, I am aware of the time, but there are assurances from the usual channels that we are not limited to an 8.30 pm finish for this debate. I will be very quick indeed. I made some remarks, when these matters were considered previously, about the welfare of the child provision, particularly the importance of considering fathers in that respect. I seek some assurances from the Minister in respect of government policy on the importance of fatherhood in consideration of these matters.
The right honourable Hilary Armstrong, when she was Minister for social exclusion, gave what many of us considered to be an absolutely outstanding speech on 29 June 2006, in which she outlined government policy. She said:
“But government can’t do it all, and throughout my career I have seen the critical importance of good parenting. And fathers are as crucial a part of this as mothers. It is an obvious, but profoundly important statement that fathers have a key role to play in caring, loving, guiding and protecting their children. Research from the National Child Development Study has demonstrated that quality involvement—fathers who read for their child, take interest in their education—is closely linked with the absence of behavioural difficulties, greater academic motivation, and greater psychological resilience. The list of positive outcomes goes on and on. In short, fathers matter. And this is why fathers—indeed all parents and caregivers—must be considered as part of the vanguard in our drive against persistent social exclusion”.
Furthermore, page 5 of the Engaging Fathers document produced by the Department for Children, Schools and Families states under the heading, “Key research findings”:
“What are the gains for children of engaging fathers? Positive father involvement in their children’s learning is associated with better educational, social and emotional outcomes for children, including: better examination results, better school attendance and behaviour, less criminality, higher quality of later relationships, better mental health”.
Those are government statements of government policy in relation to this.
The welfare of the child provision in the measure that we are discussing does not require clinics to consider the presence or existence of fathers or their active involvement in the welfare of their children. I seek assurances from the Minister that government policy in regard to the importance of fathers still obtains. If that is the case, does she consider that a further strengthening of the welfare element of these regulations is required in order to make that policy as explicit as other members of the Government have made it in the past?
My Lords, I thank the noble Earl, Lord Howe, for his Motion, which has precipitated this debate. These matters are so important that it is vital that this House debates them extensively. Therefore, I welcome this evening’s debate.
When I looked at these regulations for the first time a couple of weeks ago my initial reaction was that they raised a whole raft of new, very important ethical issues. Having studied them in detail and listened to tonight’s debate, I am now not convinced that that is the case. I say that because when noble Lords started to debate the Bill that became the 2008 Act, we had a considerable number of debates about omissions from that Bill. That Bill amended the 1990 Act. The 2008 Act was criticised for not containing a sufficient basis of principle. However, the principles which the noble Baroness, Lady Warnock, set down in her work back in 1990 endure and govern all decisions in this field; for example, that the welfare of the child should be paramount and the treatment of embryos should be of the highest order. I say that so that we do not take these regulations completely out of context, as I think there is a considerable danger that we might do that.
I make that point because I listened to the speeches of the noble Lords, Lord Patten and Lord Bates, with great care. Both of them raised important issues but those were extensively debated in this House during the passage of the 2008 Act. We discussed openness about donation and came to the conclusion, after considerable discussion, that that should be encouraged but that it is a decision best made by families. We debated the need for a father extensively and reached a conclusion with which the noble Lord, Lord Bates, disagrees, but none the less represented the view of this House and another place.
This matter has become more important for reasons which have absolutely nothing to do with reproductive medicine but concern developments in other areas of science. For example, survival rates from childhood leukaemia are now considerably higher than they have ever been previously. The noble Lord, Lord Winston, talked about our ageing society. I have a further statistic, which I hope is as engaging as the one he mentioned. It is now reckoned that every day the average life expectancy of an individual increases by 15 minutes, so people are living longer and a considerable number of them will live very long lives. A life span that we now consider represents old age may, in the not too distant future, be viewed as representing middle age. That is the context in which we should consider these regulations.
I understand that when the regulations came before the Merits Committee, noble Lords asked whether records of donated gametes, embryos and donors were not more likely to be lost if the current 10-year period were extended to 55 years, as proposed. I note that the review period remains 10 years. That important fact may have been overlooked. Because of the ending of donor anonymity and the new provision for the creation of human admixed embryos for research, never for implantation in a woman, that was introduced in the 2008 Act, clinics, the HFEA and others are required to have much higher standards of record-keeping than has ever been the case previously. Individual practitioners and clinics face severe penalties if they fail in that regard.
The noble Earl, Lord Howe, referred to intergenerational donation. Noble Lords will have seen the briefing from the Turner Syndrome Society and will have read about some of the cases. We are not talking about people who are being selfish as regards wishing that their children might have a family in due course. Many of those people are taking a very considered and thoughtful approach to the matter. The society cited the example of the lady who did not wish her daughter to be forced to contemplate becoming pregnant at the age of 18 or 19; she wanted her to be able to do that at a later stage, as other young women do when they enter settled relationships. I understand entirely the concern of the noble Earl, Lord Howe, about confusion over identity. However, it is currently permissible for a woman to donate embryos or to be a surrogate for her sister. Many families do that because they wish to have children. There is not yet any evidence that the children born in those circumstances are any more confused about their identity than others because the relevant decision has been taken in a completely different atmosphere of openness and sensitivity than was the case in the past.
As regards removing the upper age limit, I understand entirely the concern that children could be born to old mothers. However, I believe that that issue was first discussed shortly after the birth of Louise Brown, who was born in Boundary Park Hospital, Oldham, and has been discussed ever since then. That is why I think there is no absolute cut-off limit. The matter should be kept under review and is one to which Parliament should return from time to time. We should not forget that the decision to allow somebody to have fertility treatment is always an individual clinical decision, which always includes an assessment of the welfare of the child who will be born as a result. I agree with the noble Earl, Lord Howe, that there is a case for there to be more guidance but I do not believe that these regulations in themselves introduce sufficiently new and substantial ethical issues that they should not be passed by this House.
My Lords, I am grateful to the noble Earl and other noble Lords for their informed and valuable contributions. I hope I can provide assurance that these regulations put in place the necessary safeguards and that we are taking on board many of the complex issues that have been raised.
These regulations allow for storage periods for embryos and gametes to be extended for longer than the 10 years set out in the 2008 Act. Storage can be extended for further 10-year periods if the person to be treated or the gamete provider is, or is likely to become, prematurely infertile. The maximum time period embryos or gametes can remain in storage is 55 years from the day they were first placed there. These regulations replace two previous sets of regulations—one relating to extended storage periods for embryos and one relating to gametes. It was necessary to update the regulations to take account of changes in the 2008 Act and it was an opportunity to review the policy in this area.
Two key changes are introduced by the regulations. The first significant change is to eligibility for extended storage. The regulations permit extension by the gamete provider or the person to be treated. The “person to be treated” is defined in the regulations as the woman to whom the gametes or embryos will be transferred or the person to whom they are allocated. Unlike the previous regulations, this now includes where donated gametes or embryos are to be used by someone who is, or is likely to become, prematurely infertile, and where a prematurely infertile woman needs to use a surrogate.
These provisions will help real people in difficult circumstances, as outlined by my noble friend Lord Winston in his perceptive remarks. He knows about the tragic circumstances facing people to which I will refer later in my remarks. A situation was brought to the attention of Parliament during the debates on the 2008 Act in another place. A Member spoke on behalf of a constituent whose daughter suffers from Turner syndrome—a genetic condition with symptoms including infertility—who wishes to store her eggs for her daughter to use in later life. Without these regulations, extension beyond 10 years would not have been possible and storage would have expired before the daughter was of an age to make the choice about whether or not to use the eggs. These regulations rectify that situation, permitting storage where the intended recipient meets the necessary criteria, and providing them with the hope of having a child with genetic links to them. These regulations also provide for storage extension where a woman needs to use a surrogate—for instance, because she does not have a womb. The additional storage period allowed in the regulations gives couples time to find and arrange a surrogacy without having to rush into an arrangement because the storage period is expiring.
The second main policy change is to replace the age limit set out in the previous regulations with a maximum time period of 55 years. We recognise that there has to be a set storage limit and that any time period chosen inevitably involves an element of subjectivity. I hope I can explain why we decided on 55 years. The age limit of 55 years set out in the previous regulations was based on the upper age when a woman would no longer be able naturally to bear children. However, this meant that men who were prematurely infertile were prevented from extending storage beyond the age of 55, despite the fact that they were still prematurely infertile at that age—for instance, after cancer treatment when they were younger. The age limit, therefore, was not sufficiently flexible to meet individual circumstances. The age limit has been replaced by a more equitable time limit of a maximum period of 55 years from the day the embryos or gametes were first put into storage. The limit of 55 years reflects the principle of trying to ensure that no one will be worse off under the new regulations than they were under the previous “55 years of age” rule—in other words, to ensure that no one is disadvantaged by the new provisions. For example, the new provisions enable a woman to put her eggs in storage for her prematurely infertile infant daughter to use when she is older, and they enable the woman to do so for up to 55 years, subject, as the noble Baroness, Lady Barker, said, to confirmation by a doctor every 10 years that the daughter remains prematurely infertile. It is important to remember that storage can be extended only for 10-year periods and it requires a registered medical practitioner to certify that the person to be treated is prematurely infertile. Once a person is no longer prematurely infertile, no further extension of storage is possible. At each 10-year extension, a registered medical practitioner will be required to provide a statement that the person to be treated is still prematurely infertile. This change maintains a maximum limit while allowing clinical discretion to be exercised in relation to a specific patient.
I understand the concerns expressed about the well-being of children born to older parents. These regulations do not encourage conception after the natural child-bearing age. It is only people who are prematurely infertile who may extend storage. Once a person ceases to be prematurely infertile—and, in a woman’s case, becomes naturally infertile—they would not be able to extend storage of their embryos or gametes. Each application for extended storage is considered on a case-by-case basis with a registered medical practitioner deciding whether, based on their clinical judgment, that person is prematurely infertile. A further safeguard is that, before treatment can be undertaken, there is a legal duty on the clinic to consider the welfare of the child. This House has had many discussions about what the welfare of the child involves and I hope to be able to offer some comfort to the noble Earl about what is going to happen next in that respect.
Will the noble Baroness clarify a point for me? I understood her to say that the end will be set at the point the person becomes infertile. Surely the mother could become infertile before 55 years is up. Would her egg then remain in storage?
The point is whether she is prematurely infertile, not just infertile. Of course, around the age of 55, women generally become infertile.
I will try to respond to individual points that noble Lords have made. I apologise to the Coroners and Justice Bill crew about this, but I accept that the noble Earl is keen that we should have a full explanation on the record, which is perfectly reasonable.
The Human Fertilisation and Embryology Authority code of practice sets out the factors that a clinic should consider in relation to the welfare of the child test. These factors include taking a medical and social history from the patient and their partner and considering any circumstances where any child born may experience serious physical or psychological harm or circumstances that may lead to an inability to care for the child. The clinic also has a duty to offer counselling to those undergoing treatment. This gives patients the opportunity to discuss any concerns that they may have with a specialist counsellor.
The noble Earl, Lord Howe, and the noble Lord, Lord Patten, asked about guidance on intergenerational donation. The HFEA is considering the issue and the guidance that it needs to provide for clinics. The Ethics and Law Advisory Committee of the HFEA is discussing issues around interfamilial donation, including intergenerational donation, and will recommend to the HFEA whether it should provide additional guidance. In fact, it discussed these issues at its meeting today. It will be making recommendations to the authority, which will discuss those at its December meeting. The noble Earl asked about the guidance provided on consanguinity. As I said, that is being discussed and we can expect guidance on those issues.
The noble Earl, Lord Howe, and several other noble Lords asked how premature infertility is assessed. My noble friend Lord Winston gave a much more adequate answer than I probably could. It is assessed on a case-by-case basis and it would be inappropriate to include an exhaustive list of qualifying conditions. The HFEA provides guidance on when storage can be extended, listing chemotherapy treatment for cancer, for example. The extension should remain a clinical decision, allowing registered medical practitioners to take account of individual circumstances alongside the HFEA guidance.
The noble Earl asked why there had not been debate about the storage regulations. The 2008 Act was subject to extensive scrutiny in this House and debate by Parliament. Parliament did not deem it necessary for these regulations to be subject to the affirmative procedure. The storage regulations are subject to the negative procedure and were not required to be debated. Parliament did not deem that to be necessary, for some of the reasons outlined by the noble Baroness, Lady Barker, when the 1990 Act was passed and a draft of these regulations was approved by both Houses.
I hope that I have given some insight into why the period of 55 years was chosen. The noble and learned Baroness, Lady Butler-Sloss, is right that this is, to an extent, subjective, but I hope that we have given an explanation. We have gone to the limits of what we think may be necessary. If we had chosen a shorter period, we might have found ourselves back here in a year’s time because we had not covered all the eventualities and had disadvantaged people.
The noble and learned Baroness, Lady Butler-Sloss, also asked about the number of people affected by storage extension. The extension of storage is a rare occurrence, as most people find the 10-year period quite adequate. A case study of an NHS clinic showed that approximately 5 per cent of people with gametes or embryos in storage extend that storage currently. The Government estimate an increase of perhaps 50 per cent—that is 900 people—under the new regulations. This is taking into account the additional circumstances for which storage can be extended—for example, for teenage cancer patients and Turner syndrome patients. We estimate that only a few will need a further 10-year extension beyond the 20th year of storage.
The noble Earl, Lord Howe, asked what a clinic should ask itself in assessing the welfare of the child and whether age should be considered. The clinic will assess the welfare of the child in accordance with the HFEA code of practice. This requires the clinic to consider the child’s need for supportive parenting. While there is no absolute rule on age, each case would be considered on its facts and it would be reasonable for a clinic to take age into account before it took a decision.
The noble Earl also asked why extended embryo storage should be allowed in saviour sibling cases. I remind noble Lords that the test here is whether the person who needs to use the embryo is prematurely infertile, not whether the embryo is being created with the intention of being a saviour sibling.
The noble and learned Baroness, Lady Butler-Sloss, asked whether it was safe to store embryos for this period, and about the evidence. The exchange of information between her and my noble friend Lord Winston means that I need not go into detail about the safety of the storage of embryos. The noble and learned Baroness also asked about one medical practitioner being needed to certify premature infertility. My noble