Mr Jonathan Djanogly (Shadow Minister, Home Affairs; Huntingdon, Conservative)

I beg to move amendment No. 19, in page 8, line 34, at end add

‘(b)the fact that any person or organisation who may have cause to apprehend the possibility of criticism in course of or as a result of the proceedings may reasonably wish to be legally represented at the inquiry’.

We continue to steam through the clauses of the Bill. This is an important issue, which was discussed at some length in the other place, and which relates to legal representation if there is a risk of criticism during the inquiry. It might be helpful if I explained where the phraseology of the amendment comes from.

On 5 February 1998, a document was produced by the Phillips inquiry on BSE, under the signature of Sir Nicholas Phillips, as he then was. The following words are drawn from his closing paragraph, in which he describes the protection of individual interests and discusses the role that lawyers may perform. He says that the first stage of the inquiry may be devoted   exclusively to obtaining evidence of fact, but that then one turns to the point where witnesses or others face criticism. He states:

“At this point, those who are invited to answer potential criticism may reasonably wish to be legally represented in order to protect their interests. Indeed, it may well be that, even before this stage, individuals may have cause to apprehend the possibility of criticism and wish to be legally represented. If a Department at any stage forms the view that an individual ought to have independent legal assistance, it is likely to be proper and desirable for the Department to fund such assistance. Equally it will, at any stage, be open to any individual to ask the Inquiry to recommend the funding of obtaining legal assistance. It will, of course, be for the inquiry to decide what part, if any, a legal representative will play in the hearings themselves.”

The Committee will see that the amendment draws heavily on the sentence

“It may well be that, even before this stage, individuals may have cause to apprehend the possibility of criticism and wish to be legally represented.”

In the other place, Lord Howe of Aberavon said:

“I emphasise that the right to legal representation does not consist simply of having someone stand up and spout for you; nor does it consist simply of having someone sit beside you, having given you preliminary advice, and holding your hand but not being heard. At the other extreme, it does not mean the right for your legal representative to reach out for unrestricted verbosity and prolixity.”

What marvellous use of language. He continues:

“However, it does embrace the right to advice, the right to presence before the inquiry and the right to represent, and be heard on behalf of, the individual so far as is necessary. It is a question of the highest possible importance in the context of inquiries as a whole.”—[Official Report, House of Lords, 19 January 2005; Vol. 668, c. GC267]

I would also like to point out the Council on Tribunals report, which stated:

“It should not be assumed that hearing legal representatives will necessarily add significantly, or at all, to the length of the inquiry, provided the inquiry itself retains overall control. Opening statements and the like from lawyers can help to distil issues and eliminate misunderstandings, and may also enhance fairness. Oral testimony can give ... a better understanding of the matters under the inquiry’s consideration, and may assist in allaying public concerns. Being taken through evidence in chief can put a witness at ease, enabling him to give of his best when being questioned by the inquiry. Cross-examination of other witnesses may sometimes be the most effective way of resolving conflicts of evidence. Re-examination can be a much quicker way of clarifying outstanding points than the submission of additional written statements. In short, although legal representation should not be regarded as an automatic right, and the inquiry should prevent any abuse of the opportunity to be heard, it may be counterproductive to start from the position that legal representations will only be heard exceptionally. The inquiry should be ready to exercise its discretion in favour of hearing legal representatives and oral testimony and allowing cross-examination whenever it seems appropriate.”

Lord Howe went on to say:

“I repeat that it may be counterproductive to start from the position that legal representatives will be heard only exceptionally. I would strengthen the position myself by saying not merely that it ”may not” be counterproductive; it would be so.”—[Official Report, House of Lords, 19 January 2005; Vol. 688, c. GC271.]

Those are strong words from the Lords on this issue, which is why we thought it important to reintroduce the amendments. I am interested to hear the Government’s comments on them.

Mr Paul Tyler (Shadow Leader of the House of Commons; North Cornwall, Liberal Democrat)

I have listened with care to the hon. Gentleman. As I said earlier, I am not a lawyer. Indeed, as I said in a statutory instrument Committee last night, my usual approach is the Shakespearean one: I cannot remember which Shakespearean character it was, but one of them basically said, “Hang the lawyers.” No doubt my hon. Friend the Member for Orkney and Shetland disagrees.

My experience of inquiries has always been non-legal; I have appeared at various inquiries and I have sought to help constituents at inquiries. I am not sure how compatible the amendment is, in the way in which it is written, with the subsection it seeks to amend, but no doubt the Minister can deal with that. My concern about the amendment is that the presumption should be that legal representation is not necessary, and that anything that pushes too far in the direction of making legal representation not obligatory, but encouraged, is unhelpful.

On Second Reading, I mentioned the inquiry that was eventually set up into the Lowermoor water poisoning episode, which took place just before water privatisation. No doubt that was why the Government of the day were so anxious to avoid an inquiry. What was ideal about that inquiry was that there was no legal representation. As a result, it was much less formal, much less expensive and much more effective. There should not be a presumption that legal representation should be encouraged, or that it would improve the quality of exchanges or the presentation of the information.

I shall listen with care to the Minister’s response, but my hon. Friend the Member for Orkney and Shetland and I feel that to pass the amendment would mean to employ the nanny state excessively.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

How interesting it is, to use the description of the hon. Member for North Cornwall, that the nanny state should appear in the form of an amendment tabled by the hon. Member for Huntingdon.

I understand why the hon. Member for Huntingdon advocates the amendment, but it is not necessary. It is an interesting spending commitment on legal costs from the Conservative party, on which it might be worth putting a figure at some point in order to send a little note to the shadow Chancellor of the Exchequer in case he is worried about spending commitments made by his Front-Bench colleagues.

That point aside, I think that the hon. Member for Huntingdon is trying to incorporate one of the Salmon principles into the legislation. There was general agreement in the other place that accepting the amendment would take inquiries in the wrong direction. Indeed, their lordships were concerned that it could lead to more costly proceedings. The principle that the amendment would put into the Bill has been cited by commentators as one of the main factors increasing the cost and length of inquiries. The Public Administration Committee recommended that the time had come to reformulate the Salmon principles in general and to ensure fairness

“whilst minimising the adversarial, legalistic element of inquiries.”

Several distinguished former inquiry chairmen in another place echoed those arguments.

The nub of the issue is that, although there will be cases when people need to be represented, it is important to remember that inquiries are not trials, are not about civil or criminal liability and should not be adversarial. Decisions about representation are rightly for the judgment of inquiry chairmen, but if we introduce general principles about entitlement to legal representation, we need to consider carefully whether they are at odds with the role of inquiries as inquisitorial, not adversarial, processes. In general, some substantial bodies might not need to have recourse to public funds to represent their views at inquiries, but the amendment might break with that and place extra cost on the taxpayer, and it is not necessary.

The Government amended clause 18 in another place to ensure that the chairman must act fairly throughout the proceedings, and that presages some of the changes that we might be able to make to the procedure rules that will be brought forward under a statutory instrument in the usual way, when we might be able to create a balance between fairness and expediency that is more closely and precisely defined so that the chairman can be better informed about guidance on such issues. For those reasons, it would not be wise to accept amendment No. 19. It was not accepted in the other place and we should not accept it here either.

Mr Jonathan Djanogly (Shadow Minister, Home Affairs; Huntingdon, Conservative)

This is not a question of the nanny state. The amendment is a way to improve representation at inquiries. As I said, legal representation can often reduce the time taken by inquiries or other procedures in which lawyers can become involved. A good lawyer will facilitate and speed up a process, not delay it—as the popular press might have us say.

Cost estimates should include the likely costs of such legal representation. That will be consistent with what I said earlier, but it will not necessarily increase costs as a result. I disagree with what has been said. However, this is not an issue that I intend to press to a Division, so I beg to ask leave to withdraw the amendment