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

I beg to move amendment No. 26, in clause 26, page 12, line 34, leave out

‘Minister, or the chairman if subsection (2) applies,’

and insert ‘chairman’.

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments: No. 27, in page 12, line 36, leave out subsection (2).

No. 28, in page 13, line 1, leave out from ‘The’ to ‘may’ and insert ‘chairman’.

No. 29, in page 13, line 5, leave out ‘person’ and insert ‘chairman’.

No. 30, in clause 40, page 20, line 23, leave out from ‘inquiry’ to end of line 24.

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

Welcome to the Committee in your capacity as Chairman, Mr. Gale. You will have seen how far we got on Tuesday, which will hopefully enable us to have a short day today. It is fair to point out in that regard the debt that the Committee owes to the experience and thoroughness of their noble lordships, who have enabled us to centre on the key outstanding issues, of which the Committee will appreciate there are a number at this stage.

I have already spoken at some length about the increased ministerial powers granted by the Bill and the damage that it is likely to cause to the independence and effectiveness of inquiries. I shall not repeat at length the arguments that were set out under the previous set of amendments, although I underline that the same principles apply to this group.

I draw the Committee’s attention to a joint statement issued on 22 March by Amnesty International, British Irish Rights Watch, the Committee on the Administration of Justice, Human Rights First, the Human Rights Institute of the International Bar Association, Inquest, Justice, Lawyers’ Rights Watch Canada, the Law Society of England and Wales, the Pat Finucane centre and the Scottish Human Rights centre. The pertinent statement ends:

“On 15th March, 2005, Judge Peter Cory, a retired Canadian Supreme Court justice who was appointed by the British and Irish governments in 2002 to investigate allegations of state collusion in six controversial murder cases, wrote a letter expressing his own fears about the potential effects of the Inquiries Bill. He described the Bill as ‘unfortunate to say the least’ and with specific reference to the case of murdered Belfast solicitor Pat Finucane stated, ‘It seems to me that the proposed new Act would make a meaningful inquiry impossible.’ Judge Cory noted that ‘the Minister, the   actions of whose ministry was to be reviewed by the public inquiry would have the authority to thwart the efforts of the inquiry at every step’ and he concluded that he ‘cannot contemplate any self respecting Canadian judge accepting an appointment to an inquiry constituted under the new proposed act’.

We agree with all of these views and urge Parliament to take them very seriously. An inquiry held under the Bill as currently drafted would not be effective, independent, impartial or thorough, nor would the evidence presented to it be subject to sufficient public scrutiny. Such an inquiry would fall far short of the requirement of international human rights law that an effective remedy be provided to the victims of human rights violations. Moreover, the passage of the Inquiries Bill in its current form would do great harm to the tradition of public inquiries in the UK and would undermine the important principles of accountability and transparency. In order to command public confidence, it is absolutely necessary that an inquiries system permit close independent public scrutiny and provide for the active participation of the relevant victims. The Inquiries Bill does not do this.”

Those are serious and contemplative words, indeed.

Amendments Nos. 26 to 29 seek to address the imbalance of powers between the Minister and the chairman in relation to the publication of an inquiry’s report.

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

The hon. Gentleman read an interesting passage, but he did not tell us whether he agreed with it.

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

I agree with the greater part of it. If the hon. Gentleman had followed my speeches during previous sittings, he would appreciate that that is my position.

In its present form, the Inquiries Bill allows either the Minister or the chairman to publish the report, decide which aspects of the report should not be published and also decide on the timing of its publication. The Opposition believe that those powers should lie solely in the hands of the chairman. First, the Minister could clearly use those provisions to his political advantage. He can hide any facts that are embarrassing to the Government by withholding the incriminating aspects of the report. Also, he can use the timing of the report to his advantage and wait for the optimum moment, be it for maximum exposure, if the results were complimentary, or for minimum publicity, if the conclusions could be damaging to the Government. That political temptation may be just too much for any Minister to resist.

Secondly, as described by Lord Kingsland in the other place, we may find ourselves

“in a situation where chairmen, before they publish the conclusions of their inquiry, would feel obliged to send the draft conclusions to the Minister, to wait until they are approved or otherwise and then to issue only those parts that have been approved.”—[Official Report, House of Lords, 19 January 2005; Vol. 668, c. GC297.]

That would be totally against the public interest.

The principle behind the amendments received strong support from the Public Administration Committee in its report “Government by Inquiry”. The Committee stated:

“It is important that ministers should not manipulate the publication date of an inquiry report for their own ends or undermine a parliamentary debate on its findings by limiting access to it”.

In particular, the report made reference to Sir Richard Scott’s report on arms to Iraq. When concluding, the PAC specifically recommended that

“the presumption should be for chairs to handle publication. This should be reflected in the Bill.”

Similarly, the Joint Committee on Human Rights stated in its fourth report:

“We are concerned that this degree of ministerial discretion as to publication of the conclusions of an inquiry puts at risk both the independence and the appearance of independence to the inquiry”.

Further, in relation to inquiries into deaths, the Joint Committee found that clause 26 may fall short of compliance with article 2 of the European convention on human rights. The Committee doubted the Bill’s compliance with the provision, stating:

“The extent of ministerial control over whether the conclusions of an inquiry, or the evidence which led to those conclusions, will be made public has the potential to frustrate compliance with the Article 2 requirements that the inquiry be open to a sufficient degree of public scrutiny to ensure accountability, and that it provide the next-of-kin of the deceased with an explanation of the circumstances of the death.”

The Committee also wrote to the Lord Chancellor to ask why the degree of discretion in the Bill is considered compatible with article 2. It sought reassurances that responsibility for publication would be allocated to the chairman at the outset of an inquiry that engaged article 2, and that consideration would be given to making provision to that effect in the Bill. The Lord Chancellor in his reply to the Committee maintained that under the Bill there is a presumption in favour of the publication of the report. Despite those assurances, the Joint Committee’s concerns remain. It stated:

“In relation to the publication of reports, we re-emphasise our conclusion that where Article 2 is in issue, responsibility for the publication of the report should be allocated to the Chairman of the inquiry at the outset, rather than to the Minister, in the interests of ensuring an effective, as well as an independent, inquiry.”

The Conservative Opposition believe that that conclusion should be the case for all inquiries. In order to ensure that the Minister does not use the powers to his advantage, and that the individuals involved in an inquiry are sufficiently protected, it is essential to leave it to the chairman to decide which conclusions can be published and at what time.

Mr Roger Gale (North Thanet, Conservative)

Hon. Members who have sat under my chairmanship before know that I take a fairly relaxed attitude to stand part debates. You can either have one at the beginning of a debate of this kind or at the end, but you cannot have both. In view of the hon. Gentleman’s preamble, which I permitted although it was not strictly in order, I daresay that the Minister will wish to respond. That being so, I take it that it is likely that we shall have the stand part debate at the beginning rather than the end of this sequence of amendments.

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

I am grateful to you, Mr. Gale, for that guidance, as I am sure all members of the Committee are. I echo the words of the hon. Member for Huntingdon (Mr. Djanogly) in welcoming you to the Chair. I recall that you chaired the first Standing   Committee on which I served in this Parliament, and if we believe certain rumours that I have heard, you may be chairing my last. There is a certain symmetry, some might even say a certain justice, in that.

I am in broad agreement with the thrust of the amendments tabled by the hon. Member for Huntingdon, and he does us a service by tabling them. I am concerned about the nature of clause 26; it leaves a great deal of discretion in the hands of the Minister. I have no doubt that if it were in the hands of the Minister present, that discretion would be exercised in a perfectly reasonable manner. However, it is possible that others who will hold ministerial office will not be as reasonable as the Minister. When considering legislation, one always has to consider the worst-case scenario—naming no names.

The matters described in subsection (5) that should be considered by a Minister when making a decision to publish seem exceptionally woolly. There is more than a whiff of a patrician element about them. The first matter is

“the extent to which withholding material might inhibit the allaying of public concern”.

That is a highly curious formulation of words. I do not know that it should be the business of government to allay public concern. In my experience, more often than not public concern is justified. We should not encourage the inhibition of the allaying of public concern—sorry, that is the wrong way round, which shows how woolly the wording is. The second matter to be considered is

“any risk of harm or damage that could be avoided or reduced by withholding”

information. That is a wide discretion to give the Minister.

The matters cited are all ones that should be in the remit of the inquiry. If the inquiry is to do its job properly—which, returning to points made in debates on Tuesday, means that it is seen to be independent—there should be no difficulty with their being in its remit. There should be no problem with the chairman applying those considerations. If the inquiry is to be independent and to be seen to be independent, the opportunity for such ministerial interference is not only unnecessary but damaging.

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

Good morning, Mr. Gale. As always, it is a pleasure to serve under your chairmanship.

First, I will give a little background to clause 26. Its drafting reflects the different practices of inquiries and some of the legislation that is being replaced or amended by the Bill. Generally, an inquiry submits its report to the Minister, because it is a ministerial inquiry established by the Minister. It is the duty of the Minister to publish the report. That has been the practice for many years and in many inquiries. Under clause 27, we are introducing another step: the Minister lays the published report before Parliament. So, we are enhancing many of the publication steps. However, the Bill also allows the Minister to pass on the responsibility for publication to the chairman where that is more appropriate.

For a number of reasons, I do not agree with the amendments. Until now, surprising though it may be, there has been no general statutory obligation to publish inquiry reports. There has, therefore, been no limit on the types of information that could be withheld. However, the vast majority of inquiry reports have still been published in full—even reports of wholly private inquiries such as the Penrose inquiry on Equitable Life. We expect that that will be the case for future inquiries.

Clause 26(3) says:

“Subject to subsection (4), a report of an inquiry must be published in full.”

The powers to withhold information from publication are limited. We made amendments in another place to ensure that the powers could not be used to prevent disclosure of, for example, any information under the Freedom of Information Act 2000—so that there are clear limits to the powers.

The amendments tabled by the hon. Member for Huntingdon would leave such decisions entirely to the chairman. They would leave Ministers unable to fulfil their duty to protect the public interest for national security reasons or to safeguard an individual’s rights under human rights legislation. They would remove important safeguards against serious harm or damage.

I hear and understand what the hon. Member for Orkney and Shetland (Mr. Carmichael) says about the wording of subsection (5), but I believe that it covers neatly the matters that the person in charge of publication must have regard to when they make such decisions, and it sets out clearly the considerations about allaying public concern and the damage that could be done by withholding or releasing material. In fact, it is fairly straightforward.

The Minister will often be in a better position than an inquiry chairman to decide whether disclosure of particular information is likely to cause harm. A good example is an inquiry that is considering information related to national security issues. Two seemingly innocuous pieces of information may have the potential when taken together to cause harm. In some situations, something as simple as using a direct quote from a source may be harmful, but harm could easily be avoided by paraphrasing. The Government have greater expertise and responsibility in security matters to spot the dangers and to judge the risk involved—that is the nature of government—whereas the chairman may not be personally aware of the dangers. As I said, we do not expect that situation to arise in the vast majority of cases, but we must be able to act to protect the public interest on national security grounds, among others.

I remind the Committee that the powers are clearly defined in the Bill. They are defined better than they have been in previous inquiries legislation. They are now enshrined in the Bill, and, as we know, any decision to withhold information will be reviewable by the court. That is another safeguard. Given those safeguards and the fact that the clause is much more up   front about the framework for publication of reports, I ask the hon. Member for Huntingdon to withdraw the amendment.

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

The Minister implied that this is an excellent clause because there have been no such rules before. Indeed, there have not been any, and it is certainly a good thing that the Bill addresses the requirements. However, the fact that to date there have been no rules on the requirement for publication of the report does not mean that now that we are addressing the issue we should legislate wrongly, particularly by giving too much power to the Executive in respect of publication.

The hon. Member for Orkney and Shetland said that the subsection (5) reasons were “woolly”, and I agree with him. In the context of the ministerial power involved, that is particularly the case. For those reasons, I shall ask for a Division.