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

The clause relates to offences that may be committed in the event of non-compliance with the inquiry or due to actions that are likely to hinder the inquiry in some way. There is universal acceptance for the principle behind the clause, which is that although the inquiry may not enforce sanctions when actions frustrate it, it is important that court support is available to ensure the smooth running and effectiveness of the inquiry process. I have two points for clarification in respect of subsections (5) and (6), which specify who can bring proceedings and under which circumstances.

It is appropriate that a distinction be drawn between the offences under subsection (1) and those under subsections (2) and (3). The former relates to offences when a person does not, without reasonable excuse, comply with a chairman’s notice under clause 22.   Clause 22 notices can require a person to attend the inquiry to give evidence, to produce documents or to provide any other thing in their custody that the chairman feels may aid in his investigations. As subsection (1) has a narrow and directed ambit, applying only to such notices, it seems appropriate that only the chairman can bring proceedings for non-compliance. Only he will know when such action may hinder the inquiry to such an extent that proceedings would be appropriate. The enforcement of clause 22 notices will also be relatively swift, as the chairman need not go through the Director of Public Prosecutions to institute proceedings.

By contrast, subsections (2) and (3) have a much wider scope. They relate to any acts that may distort or suppress evidence or relevant documents. Given the general application to all issues relating to inquiry evidence, it is feasible that persons other than the chairman may have an interest in bringing proceedings. The Bill recognises that, but it also recognises the strength of opinion and possible bias of many people interested in an inquiry’s process. As such, subsection (6) requires that all proceedings brought under subsections (2) and (3) must go through the DPP. The Conservative Opposition fully appreciate the importance of ensuring that the availability of offences under the Bill and the related procedures are not abused by persons with an interest in the inquiry.

Why is it not open to the chairman as well to bring proceedings for offences under subsections (2) and (3)? He is chosen for his independence and so would not have any bias or ulterior motive in using the procedure to further any aim other than the efficient and effective progress of the inquiry. The need for him to go through the DPP each time he wants to bring such proceedings may be a waste of time and resources. In most instances when such proceedings are brought, it will be the chairman who will instigate them. Also, as with clause 22 notices, the chairman will be best placed to know when a person is distorting or suppressing evidence. No doubt the DPP would ask for the chairman’s judgment as to whether any complaints of such action were well founded and not tainted by bias. That underlines yet again the important role that the chairman can and should play in bringing proceedings for all clause 36 offences.

The Government state in the explanatory notes that they would like to leave open the possibility

“that prosecutions can be brought after the inquiry has ended (which would not be the case if the chairman had to bring them).”

Although that may be a reason to include the DPP in the process, it provides no basis for excluding the chairman from bringing proceedings during the lifetime of the inquiry. In any case, I imagine that proceedings would be brought after the conclusion of the inquiry only in exceptional circumstances, such as the destroying of evidence right at the end of the inquiry process, leaving little time to go through the courts. How does the Minister expect the post-inquiry procedure to be put to more frequent use? Such an unlikely occurrence provides little justification for the   exclusion of the chairman from the procedure at all times and for the increase in bureaucracy and red tape involved in that process.

My second point can be dealt with more quickly. I note that subsections (5) and (6) prescribe who should instigate proceedings for the various offences under clause 36 in England, Wales and Northern Ireland. Scotland seems to have been overlooked. The explanatory notes provide some enlightenment in that in Scotland the offences under subsections (2) and (3) are the responsibility of the Crown Office and the Procurator Fiscal Service. However, no mention of Scotland is made in relation to the offence under subsection (1). No doubt there is an entirely sensible explanation for that, but I would appreciate it if the Minister clarified matters.

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

I find it difficult to share the hon. Gentleman’s concerns. I note that the offence is only triable summarily. My recollection is that under the terms of the Criminal Procedure (Scotland) Act 1995, summary prosecutions can only be brought in Scotland by the procurator fiscal acting on behalf of the Lord Advocate. There is no scope for anyone else to prosecute in summary courts, with the exception of truancy offences, which can still be brought by local education authorities. I presume that that is why the point is properly made in the explanatory notes that the process will be carried out by the procurator fiscal.

In my view, this is the sort of situation in which the prosecution ought to be brought by the Director of Public Prosecutions acting in the public interest, as would be the case north of the border by the equivalent officers there. I will not go too far into this because I respect the fact that English and Welsh jurisdiction has always taken a different approach to the question of who brings prosecutions and there is a much wider range of bodies with that entitlement. I cannot pretend to understand why that should ever have been the case, but there are many things in England and Wales that I do not understand, which I merely have to accept.

I can certainly see circumstances in respect of which the offence would be very grave, so why is it to be tried summarily only? In a case of significant national importance, the route should be open to bring a prosecution on indictment. That does not seem to be open to the court. The maximum penalty is level 3 on the standard scale, which, from recollection, is about £1,000—I might be wrong about that—or six months imprisonment, which is the statutory maximum for a summary court in Scotland.

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

The clause provides sanctions for non-compliance with an order of the inquiry or for actions that are likely to hinder the inquiry. If an inquiry has formal powers to compel information, there must be a sanction consequent on that for anyone who fails to comply with an order made under those powers. Although experience of past inquiries shows that sanctions are rarely likely to be needed, it is nevertheless important to have them. The recent example of Lord Laming successfully bringing a prosecution against a witness who refused to comply   with the inquiry into the death of Victoria Climbié demonstrates that, on occasion, some sanctions are necessary.

The hon. Member for Orkney and Shetland asked why the offence is made summarily only. The offences created in the Bill are similar to those in section 250 of the Local Government Act 1972, which is the model used in many subject-specific inquiry powers. We decided to take that precedent and use it in this case. I understand that an argument can be made for stronger powers and I take his point, but that is our rationale for drawing up the provisions in that way.

Subsection (1) makes it an offence not to comply without reasonable excuse with a request under clause 19. It is for the chairman to decide whether to institute a prosecution under that subsection. He also has the alternative option of using the enforcement route under clause 37. It is important that the inquiry has access to all available evidence, subject to clause 23 on privileged information.

Subsections (2) and (3) make it an offence deliberately to distort or conceal evidence. Those sanctions can be applied only to actions taken after an inquiry has been set up and are framed so that a person could not unwittingly commit an offence. The clause also ensures that actions authorised by the panel are not offences.

We do not want a situation in which anybody can bring a private prosecution simply because they disagree with particular evidence, which is why prosecutions under subsections (2) and (3)—to answer the query from the hon. Member for Huntingdon—can be brought only by or with the consent of the Director of Public Prosecutions or, in Northern Ireland, by the DPP for Northern Ireland. Since it would be possible for prosecutions to be brought following an inquiry—although only for actions that had occurred during it—it is not appropriate for the decision about whether to prosecute to be taken only by the chairman.

Essentially, the hon. Gentleman asks why there is a difference between those things. Our concern is that offences might come to light after the end of an inquiry, at which point it would not be appropriate for the chairman to have a role in those proceedings because the inquiry would have concluded. That was how we framed the clause.

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

Although the chairman will obviously no longer be chairman of the inquiry because the inquiry will have finished, that does not mean to say that he could not have a role. Judging from the explanatory notes, I think it is the Government’s intention that he would have, even though the DPP would be involved. That is what I am trying to tease out. Will the Minister confirm that the chairman would be brought into the process, because he would still know what the situation was?

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

Once the inquiry has finished, the chairman is a private citizen like anyone else and he may or may not wish to get involved in bringing the   prosecution. We have framed subsections (2) and (3) so that things are not left only to the chairman, because, in effect, there will not be a chairman as the inquiry will have concluded. Of course, the chairman could, in theory, with the permission of the DPP, be involved, but that is not a likely scenario. I accept that it is a hypothetical possibility, and it is not excluded by the way in which we have framed the legislation. However, we understand and appreciate that, after an inquiry has finished, it is more appropriate that those matters rest with the DPP.