Clause 40 - Payment of inquiry expenses by Minister
Inquiries Bill [Lords]
9:45 am
Mr Jonathan Djanogly (Shadow Minister, Home Affairs; Huntingdon, Conservative)
I beg to move amendment No. 31, in clause 40, page 20, line 25, leave out subsections (4) and (5).
Throughout the Committee, I have described our concern that the Minister will be entrusted with too much power. Although I will not take up time by running through those arguments again, I do not want my brevity to distract from the importance of the amendment or the particular way in which the Minister’s power may, in this case, risk the independence and effectiveness of the inquiry process.
The amendment would remove the Minister’s ability to withhold the funding of an inquiry that strays outside its terms of reference. The power is unacceptable to us for two reasons. First, it would, in effect, allow the Minister to dictate the path that the inquiry should take. He could at any time claim that the inquiry was outside its terms of reference and so withhold funds, which would, in practice, be tantamount to stopping it in its tracks. That power could be used to the Minister’s advantage to prevent an inquiry from entering an area that could be damaging or embarrassing to the Government. That will clearly affect its credibility.
Secondly, it is for the chairman to interpret and apply the terms of reference once the inquiry is up and running. He is the man on the ground and only he can know the exact path that the inquiry may need to follow. For example, if new evidence arises that opens a new avenue to be explored, only the chairman would have intimate knowledge of its interrelationship with other aspects of the inquiry. As such, only he should be able to decide, in an informed and independent manner, whether to follow up that lead and bring about the related expenditure. The Minister may not be in a position to make that judgment at the outset because uncertainty is inherent in an inquiry. One just cannot know the exact direction that an inquiry will take; if one does, the inquiry may not be necessary. Our amendment removes the ability of the Minister to dictate how the terms of reference are applied, by withholding funds when he argues that those terms of reference have not been respected.
The approach taken in the amendment is supported by the Joint Committee on Human Rights, which stated in paragraph 221 of its fourth report:
“Whilst the terms of reference of an independent inquiry may be open to differing interpretations, their interpretation and application should be a matter for the Chairman of the inquiry, if independence is to be maintained. We are concerned that this provision undermines the role of the Chairman of an inquiry in interpreting and applying his or her terms of reference, and leaves open the possibility of undue ministerial influence on an inquiry”.
Indeed, the Committee wrote to the Lord Chancellor to express this concern and also asked why the clause is considered to be compatible with article 2 of the European Convention on Human Rights. The Lord Chancellor replied that the clause provided a mechanism for ensuring that the inquiry remained on track and argued:
“as the Minister would only be intervening to ensure the inquiry keeps within the remit agreed at the outset in the terms of reference, I do not consider that this clause undermines the role of the chairman or affects compatibility with Article 2”.
The Committee appreciated the need for an inquiry to adhere to its terms of reference, but repeated its view that a characteristic of an independent inquiry is that the terms of reference are interpreted and applied by the chairman and the inquiry panel. The Opposition support this view and argue that that aim cannot be fully achieved while the Minister has the ability to remove funds to ensure that the terms of reference are interpreted and applied in a particular way.