Clause 18 - Evidence and procedure
Inquiries Bill [Lords]
4:15 pm
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.