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

I beg to move amendment No. 21, in clause 20, page 9, line 24, leave out

‘either or both of the following ways’

and insert ‘the following way’.

Mr Win Griffiths (Bridgend, Labour)

With this it will be convenient to discuss the following amendments: No. 22, in clause 20, page 9, line 25, leave out paragraph (a).

No. 23, in clause 20, page 9, line 29, leave out ‘notice or restriction’.

No. 24, in clause 20, page 9, line 32, leave out ‘Minister or’.

No. 25, in clause 20, page 10, line 8, at end add—

‘(6)In proceeding under this section, the Chairman must start from the presumption that public access should not be restricted.’.

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

We now come to restrictions on public access. The amendments relate to the imbalance of power between the Minister and the chairman. We believe that the chairman would be more independent and have more intimate knowledge of the inquiry if our proposals were accepted. Our position has been strongly supported by the Public Administration Committee, the Joint Committee on Human Rights, the Lord Chief Justice and many other Law Lords, as well as the Finucane family, the Committee of International Human Rights of the Association of the Bar of the City of New York and many others.

It was pointed out by Lord Kingsland in the other place that clause 20

“will retain iron control over all matters concerned with the disclosure and publication of evidence. For example,—

under clause 20—

the Minister can issue a restriction notice at any time, before or during an inquiry, as to whether the hearing should continue to be held in public, whether material advanced and adduced in evidence should be published, and on a whole range of other matters, as long as he considers it to be necessary in the public interest.”—[Official Report, House of Lords, 9 December 2004; Vol. 667, c. 1011.]

I agree with Lord Kingsland that that is a draconian power, allowing the Minister to second-guess the judgment and discretion of the man on the spot who is the chairman of the inquiry.

Amendment No. 21 is the first of several amendments to the clause that we regard as important. One of the two themes of the Opposition’s approach to the Bill has been the lack of balance between the powers of the Minister and the powers of the chairman in respect of any particular inquiry. This lack of balance is illustrated by clause 20, which gives rise to two sorts of restriction instruments—a restriction notice, which is to be issued by a Minister, and a restriction order, which is to be made by the chairman of an inquiry committee. We have no difficulty with the powers that clause 20 grants to the chairman. These are traditional powers and powers that are rightfully and sensibly granted to somebody who is in charge of a public inquiry.

However, we do not believe it appropriate for the Minister to have any of the powers that are comprised in and implied by a restriction notice. These powers would give a Minister the authority to issue notices restricting, for example, public access to an inquiry’s proceedings, to evidence given to an inquiry or to documents produced to an inquiry.

The essence of the role of a chairman of an inquiry is to balance considerations of national security, international relations and comity, economic interests both national and international, and questions of   commercial secrecy against the public interest in having a complete picture of the subject matter of the inquiry itself. In respect of any individual matter which gives rise to one or other of these considerations, the chairman of the committee has to make a balancing decision. For example, he has to balance the interests of national security against the interests of the individual, whether a witness or someone under investigation, to have the matter properly exhibited to the general public.

We have no difficulty with the chairman being charged with these responsibilities, but we do not see how the Minister can possibly place himself in the same situation as the chairman. The public inquiry has been set up by the Minister to investigate a matter. The Minister then stands back while the inquiry conducts its business. At any stage of the inquiry the Minister is simply not qualified to make these balancing judgments. He appointed the chairman to make these judgments in the interests of the public.

If the Minister is informed by his Department that on day 42 of a public inquiry an important national security issue was raised, he is almost bound to err on the side of giving that national security issue undue weight because he has no feel for the circumstances.

So, in short, these amendments remove the right of a Minister to issue restriction notices while preserving the chairman’s right to make restriction orders.

The Public Administration Committee’s report said:

“Lord Salmon’s observation on public versus private evidence gathering was succinct: ‘Secrecy increases the quantity of the evidence but debases its quality’”

and further commented that the Council on Tribunals considered that

“In principle, it seems right that an inquiry into a matter of public concern should itself be conducted in public, unless there is a strong public interest in the inquiry, or part of it, being held in private for reasons such as national security ... Aside from any other consideration, public hearings go a long way towards reassuring the public that the subject matter of the inquiry has been fully investigated and that there has been no ‘cover-up’”.

However it went on to suggest that on certain occasions there might be advantages in holding inquiries in private as long as its report was published:

“Sometimes it may be easier to elicit the truth when questioning is not conducted in the full glare of publicity”.

In their response to the Select Committee’s recommendation, the Government noted that they:

“cannot accept the Committee’s recommendation, because it does not agree with the Committee’s premise in paragraph 88 that in the Bill the obligation of public access is subordinate to the power of restriction. There is a presumption of public access in the Bill.”

Will the Minister justify how that is so, because I cannot see it?

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

It is a funny old world when you find the Tories promoting openness and scrutiny of Government decisions and a Labour Government denying them. I presume that the Minister is going to deny them. I wait with some interest to be shown to be wrong.

On this occasion I am broadly in sympathy with the amendment and the remarks of the hon. Member for Huntingdon. There will be times when it will be necessary for information to be excluded from the public part of a public inquiry, but that decision needs to be made by the chairman of the inquiry if the inquiry is to be seen as open, transparent and independent of the Government. If the Minister insists on providing a power—similar to a public interest immunity certificate, frankly—for people not to co-operate with an inquiry by providing information, the independence of the inquiries in question will be fundamentally compromised and we will have a very flawed beast. The Government can do better, and the amendments tabled by the hon. Member for Huntingdon would constitute a significant improvement.

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

It is important at the outset to understand what clause 20 is designed to do. Quite properly, it defines the circumstances in which restriction notices can be agreed by Ministers or restriction orders can be agreed by inquiry chairmen. It allows Ministers to consider the wider public interest and whether the inquiry should have private sessions. However, we need to remember that, even if there are restrictions on public access, nothing can prevent an inquiry from having all the information before it. That is especially so if it is in private session. It will be able to have the full facts—the full information—before it to determine the truth and reach conclusions. An inquiry may be in private session for national security reasons, but it will have full access to the facts and will therefore be able to reach a truthful conclusion. That may be so obvious that it has not been stated so far. We are talking about public access to inquiries versus private sessions, not about restricting what inquiries can consider.

Amendment No. 25 is the most straightforward amendment in the group. It would introduce a general presumption of public access, but that presumption is already in the Bill. Clause 19 already makes it clear that the starting point for any inquiry is full public access to all proceedings and evidence. Clause 20(3) makes it clear that restrictions can be imposed only when the criteria in that clause are met. The presumption is that public access should not be restricted. The onus is on the Minister or the chairman to satisfy themselves that certain tests are met before they issue restrictions.

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

Is the Minister giving the Committee an explicit assurance that every clause of the Bill is fully in accordance not only with the letter but with the spirit of the Freedom of Information Act 2000?

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

Yes. I think that later clauses in the Bill deal with freedom of information arrangements, because inquiries, not being public bodies, might not want to be and should not be subject to freedom of information requests during the inquiry process. However, I think that we made amendments on that issue in the other place, and we might come to those aspects later. In general, I think that we have said—I stand to be corrected—that after an inquiry has   finished, the records and archives of the inquiry will be subject to the normal freedom of information request arrangements and exemptions.

Restrictions on public access would not be ordered lightly by chairmen or by Ministers in restriction notices. Clause 20(4) sets out the factors that must be taken into account when determining whether the public interest test has been met. It makes it clear that the Minister or chairman must always weigh the reasons for restriction against the extent to which issuing the restriction

“might inhibit the allaying of public concern”.

That will usually be a strong argument to retain public access.

Amendments Nos. 21 to 24 would give the Minister setting up an inquiry no role whatever in deciding the form of the inquiry and the terms of public access. When a Minister is setting up an inquiry, they must be sure that they will not endanger witnesses or put national security at risk. Those are very important considerations, and public access or private hearing can make an important contribution on those two points.

A Minister has to be able to set up an inquiry in a way that will allow it to get to the truth most effectively. Decisions about privacy must be part of that process. As has been said in the other place, there are cost implications. For example, Ministers have established a number of recent health inquiries partially on the basis of private hearings, because it meant that they could operate more efficiently, streamline procedures and get to the truth more quickly. I think that in a judgment about the Allitt inquiry, Lord Bingham said:

“It is an undoubted truth that a statutory Inquiry conducted in public would last longer and cost more and the money so spent would of course otherwise be available for the care of patients. This was pre-eminently a matter for the judgment of the Secretary of State.”

In rare cases in which large portions of the information would be sensitive, it is much better to have a single decision about public access right at the start—which can of course be challenged—rather than numerous applications for public interest immunity throughout the inquiry, which can be very protracted and cause delays.

The powers that are sought in clause 20 are not new; existing legislation, including the Children Act 1989 and the Police Act 1996, has explicit powers for Ministers to hold an inquiry or part of an inquiry in private. What is new in the Bill is the set of qualifications on the use of those powers. In fact, for the first time we set out the reasons why a Minister may hold an inquiry in private.

The Bill in many ways restricts Ministers’ current powers in that respect. It creates a clear structure in which decisions about public access and privacy must be made. Any attempt to use the clause to impose improper or unreasonable restrictions could, and undoubtedly would, be challenged through judicial review. The clause is well framed and details the   considerations that Ministers and inquiry chairmen would have to make. I hope that we can retain it as it stands and reject the amendments.

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

I was pleased to hear the hon. Member for Orkney and Shetland accepting the openness of the Conservative party. That was very nice. I agree with what he said on that issue and—he will be pleased to know—with his comments generally.

The Minister maintained that there was a presumption of public access. He said that it permeated the clauses of the Bill. I need to go away, weigh up his words and consider to what extent they are adequate. I will not press the amendment to a Division. This is an issue to which we might want to return later—unless my Liberal Democrat colleague explains to me that he has assessed the Minister’s words.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

No.

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

In that case, I will stick with that approach at the moment. I beg to ask leave to withdraw the amendment.