Clause 20 - Restrictions on public access etc.
Inquiries Bill [Lords]
4:30 pm
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?