moved Amendment No. 1:
After Clause 6, insert the following new clause—
"INQUIRIES WHERE MINISTERIAL MISCONDUCT IN ISSUE
(1) This section applies where—
(a) a Minister proposes to cause an inquiry to be held, and
(b) it appears from the proposed terms of reference that the events in question relate wholly or primarily to alleged ministerial misconduct.
(2) The Minster may, if he sees fit, move a motion before the relevant Parliament or Assembly for a resolution approving—
(a) his proposal to cause the inquiry to be held, and
(b) his proposals as to the inquiry's terms of reference and the identity of the chairman; but an inquiry is not invalidated by the absence of such a resolution.
(3) Section 6(1) does not apply in any case in which the Minister has moved a motion in pursuance of this section.
(4) In this section "ministerial misconduct" means misconduct by—
(b) a member of the Scottish Executive,
My Lords, I have tested the patience of your Lordships' House on several occasions at earlier stages of the Bill's progress with respect to the theme that underlies the amendment. I shall on this occasion, therefore, be exceedingly telegraphic.
The Bill is silent on the most constitutionally important form of public inquiry—an inquiry that investigates the misdemeanour of a Minister. I suspect that the reason for that is not difficult to discern. Prime Ministers prefer to set up such inquiries under the Royal prerogative, giving them maximum discretion with respect to the procedures that are used in particular cases.
We take a different view. Ministers are supposed to be accountable to Parliament. The committees that investigate ministerial misdemeanours should be committees of Parliament. At Second Reading and at later stages, we set out a proposal that, normally, such committees should be composed of five Members, three from another place and two from your Lordships' House. The three from another place would be representatives of each of the three main political parties, and the two from your Lordships' House would be Cross-Benchers.
Between Committee and Report, the Select Committee on Public Administration in another place published its report. It had devised a scheme that was almost identical to that suggested from the Opposition Benches. On Report, the noble Lord, Lord Goodhart, and I set out, in terms, the amendment that the Public Administration Select Committee recommended should be tabled when the Bill reached another place.
On mature consideration, the noble Lord, Lord Goodhart, felt that he could not support the same amendment at Third Reading. As a result of discussions that the noble Lord and I have had, we have come up with a joint amendment that is more flexible than I would have liked but nevertheless ought to give something to those in another place who take a great interest in such matters.
The noble Lord, Lord Goodhart, and I are exceedingly keen to know what the noble Baroness's reaction to our proposals will be. I beg to move.
We would welcome the principle of parliamentary involvement in the setting up of an inquiry into ministerial misconduct. We would certainly welcome some procedure by which an inquiry could be set up by Parliament without it being initiated by the Government. Possibly the best solution would be for a Select Committee of either House to conduct such inquiries on its own initiative. That would not require statutory authority and is, therefore, not appropriate for inclusion in the Bill. Also, it must be said that a forensic inquiry of such a kind would need to be conducted by counsel for the committee and not under the normal procedure, with each member of the committee asking questions in turn. That would be unworkable. Unfortunately, it seems that the chairmen of the Select Committees in the other place are not particularly receptive to that idea.
On Report, we supported the draft amendment annexed to the report of the Public Administration Select Committee. However, on further consideration of it—it was published only 24 hours before we had to table the amendment—I concluded that there were serious defects in it. First, if a parliamentary procedure were mandatory for an inquiry involving ministerial misconduct, it would be necessary to draw a line between inquiries according to whether they did or did not involve ministerial misconduct. That could be difficult. It could well turn out that, during the course of an inquiry that was not originally thought to involve ministerial misconduct, it did in fact involve such misconduct.
Secondly, the PASC amendment would lead to the Government using the non-statutory inquiry whenever the occasion arose, in order to avoid having to use the parliamentary procedure. The new version of this amendment, by making it optional for the Government to use the parliamentary procedure in misconduct cases, would avoid both these defects.
A government might well think it appropriate to use the parliamentary procedure in high-profile cases, to meet public concerns about the independence of the inquiry. They would not be tied down by any requirement to use that procedure in any particular case. This seems something that ought to be welcomed by the Government, since it would give it a degree of flexibility that it does not have under the present Bill. We are, therefore, happy to support this amendment.
My Lords, the noble Lords, Lord Kingsland and Lord Goodhart, have at various stages of the Bill proposed—up to now, separately—different amendments to try and involve the two Houses of Parliament in some way in the setting up of an inquiry. They referred to the Tribunals of Inquiry (Evidence) Act 1921, which involved resolutions of both Houses of Parliament.
What is before us today is, to some extent, without being unduly rude, a watered-down version of amendments that have been proposed by the two noble Lords at previous stages of this Bill. On Report, they were fortified—certainly I thought that the noble Lord, Lord Kingsland, felt he was fortified—by the report of the Select Committee on Public Administration favouring a parliamentary inquiry, or parliamentary involvement, or a parliamentary commission, as the Select Committee referred to it. The noble Lord, Lord Kingsland, liberally quoted from that report.
In this amendment the noble Lords, Lord Kingsland and Lord Goodhart, are not directly pursuing the idea of a parliamentary inquiry, though from what the noble Lord, Lord Kingsland, said, he was perhaps indicating an element of encouragement to the other House to insert something appropriate along those lines, as and when they get the Bill. As has been said previously, at any stage either House of Parliament is free to call for and arrange an inquiry—for example, into ministerial conduct—without a Minister necessarily being the prime mover.
In this amendment the noble Lords, Lord Kingsland and Lord Goodhart, want a resolution of Parliament approving a ministerial proposal to hold an inquiry whenever the terms of reference "relate wholly or partially" to events involving "alleged ministerial misconduct". I notice that the Minister is given a discretion. The amendment says that he may act "if he sees fit"—presumably sometimes he may not see fit to move such a resolution. The amendment expressly states that the
"inquiry is not invalidated by the absence of such a resolution".
It strikes me, subject only to the element of encouragement to the other House when it gets this Bill, that there is not much left of what the noble Lords have been putting to the House at various stages of this Bill about getting Parliament involved. We have a somewhat inchoate resolution that may or may not be passed and, whether it is or is not, it does not make any difference to the ministerial determination to have an inquiry.
Therefore, whatever view one takes about the need for parliamentary involvement in setting up an inquiry when ministerial conduct is involved, I am not sure of the value of the amendment. I am not sure that this does much either for the arguments that I have heard noble Lords opposite giving at earlier stages or otherwise.
My Lords, I briefly support the noble Lord, Lord Borrie, in his well argued concerns about this amendment.
As indicated, we have discussed these matters at earlier stages, seeking a way to improve on the current position. We need to be cautious about moving away from what I would consider the basic principles: that the appointment of a Minister is in the gift of the Prime Minister. Ministers have to perform to the satisfaction of the Prime Minister, but also within the established ministerial code. Of course, a Minister can be removed by the Prime Minister at any time.
When it comes to ministerial misconduct, we need to exercise some caution against cutting across the machinery already in place in another place to deal with concerns about ministerial conduct or indeed the conduct of any other Member of the House. I would suggest that this amendment does not add anything that is not already in place in the other place.
My Lords, I begin by saying to the noble Lords, Lord Kingsland and Lord Goodhart, that I am grateful for their taking on board some of the issues that I raised when we previously discussed the principle behind this amendment and for the time that they gave me last week when we discussed outside your Lordships' House the issues that are raised here. Like other noble Lords, I intend to be reasonably brief, because we have dealt with the issues during the passage of the Bill.
The Government cannot accept this amendment. There are a number of reasons that I wish to allude to briefly in describing why, some of which have been mentioned by my noble friend Lord Borrie and others by the noble Lord, Lord Laming.
The first is, as the noble Lord, Lord Laming, said, that the ministerial code sets out the standards that the Prime Minister expects Ministers to uphold. The Prime Minister's foreword to that code makes clear that he expects all Ministers to work with the letter and the spirit of the code, to undertake their official duties in a way that upholds the highest standards of propriety. The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and of the appropriate consequences of a breach of those standards.
Secondly, although we recognise that this is an optional amendment, we believe that, if it were part of the Bill, there would be enormous pressure if it were not used on every occasion somehow making the inquiry substandard. There is a genuine political point there. The reality, as the noble Lords must be aware, is that the Prime Minister and others would always be expected to use it.
That brings us to the real concern that I have about the definition of "misconduct".
My Lords, of course the noble Lord is correct. However, I contend that, if this amendment were to go through, there would be political pressure for the Prime Minister to seek a vote in both Houses on all occasions in issues of misconduct. That is a reality. I accept that the current position may be different, just as I accept that there are already powers within Parliament to do other things, as I will come on to. None the less, it would be there to give the Minister or Prime Minister a greater ability to set up an inquiry in a particular way and to give those parties, whether they are inside or outside your Lordships' House or another place, the opportunity to push for that, to give credence to the inquiry. I do not believe that we can get away from that—it is political life, and we have to accept it.
That brings me on to the issue of defining misconduct, which we have discussed. When one reads the report from the Public Administration Committee, Sir Michael Bichard in his the evidence talked about the continuum. The difficulty is in defining ministerial misconduct. The noble Lords who tabled the amendment will, I am sure, have a clear picture in their own minds of what they would include in that. The Bill is about events of real importance; it is designed to deal with the kind of inquiries that we have seen on the Victoria Climbié tragedy, Alder Hey, Bristol hospital and so on. That is really its prime purpose. There is a real concern that you can look at any inquiry and find, if you wish, an issue of ministerial misconduct—whether because, if funding had been better in a particular aspect of public life, the tragedy might not have happened, or whatever. So there is a problem in defining when ministerial misconduct has taken place.
Although noble Lords and Members of another place may feel very clear about what they or we mean, I would argue that outside the Houses of Parliament those who are victims of a tragedy may say, "Actually, the government are at fault here—we believe this is a real issue of misconduct in the government, because these events would not have taken place if the government hadn't acted in that way". So I have a real difficulty in drawing the line on ministerial misconduct. Although noble Lords may have a very clear view in their own minds, many people outside your Lordships' House would feel very passionately that issues such as funding would come under the term, and pressure would result from that.
Above anything else, this Bill is about the need to ensure that when we conduct inquiries into matters of real public concern, there is confidence in the system. Anything that we do that undermines that confidence in any way is to the detriment of our society. I would argue that if we included in the Bill something that said that in certain circumstances it was a very good idea for the Prime Minister to put this forward and then said that it would not matter if he did not—and then have victims of the tragedy saying that in their view, the matter was absolutely about misconduct, even if the noble Lords, Lord Kingsland and Lord Goodhart, and I would say that it was not—we would undermine public confidence. I am very reluctant to do that.
I, too, have had the privilege of discussing the issues with the chairman of the Public Administration Committee and I, too, have put lots of ideas to him. I recognise that there is a genuine desire to discuss the issues. Of course, as it was a committee appointed by another place, my ambition was that there would be a full debate in another place—hence my halving that time available in the timetable to reply to the Public Administration Committee, so that by Second Reading our response would be out and there could be a full and proper debate in another place. As I pointed out, and as noble Lords know, the Select Committee process could be a means of dealing with these issues. Indeed, there is nothing to prevent Parliament deciding on a procedure.
I do not deny the need for a debate, but in the end I believe that this is the wrong amendment. As the Minister responsible for this Bill, it is not my contention that we should send this Bill to the Commons with such a proposal attached to it, for the reasons that I have given. I really hope that noble Lords will accept that we want a full and proper debate on the committee report in another place, on the basis of what I have said about the issues, and that they will have the benefit of that debate in their deliberations if the Bill comes back to this House. I hope that noble Lords will feel able to withdraw their amendments, to ensure that public confidence is at the heart of this Bill.
My Lords, I thank the Minister for her reply.
The noble Lord, Lord Borrie, is right in observing that the amendment resiles from the muscularity of the amendment that the noble Lord, Lord Goodhart, and I tabled on Report. As the noble Lord, Lord Goodhart, said, we had sight of the report from another place only 24 hours before we had to table amendments, which gave neither of us time properly to examine all the implications of the Public Administration Committee's draft.
However, I do not believe that the noble Lord, Lord Goodhart, would mind my saying that as a result of a period of further reflection, while I remain attracted to the amendment that we tabled on Report, he had certain reservations which he expressed, very fairly; therefore, in the spirit of compromise, we devised the amendment currently before your Lordships. I believe that it is also fair to say that, in the course of devising the amendment, we had a number of discussions with the Minister in the hope that we might find a draft of sufficient allure to change the Minister's view. As your Lordships have heard from the Minister's comments at the Dispatch Box, that was not to be.
I have listened carefully to what noble Lords have said about our amendment. I was rather puzzled by the views expressed by the noble Lord, Lord Laming, for whom I have the greatest possible respect, as has the whole House. It seems to me that constitutionally a Minister is accountable not to the Prime Minister but to Parliament. The whole logic of our constitution is that Ministers are responsible to Parliament. Therefore, in my submission, the fundamental responsibility to make Ministers live up to the standards which they ought to live up to reposes in Parliament. In my view, the amendment that we have tabled seeks to achieve precisely that.
The Minister feared that, if the amendment was included in the Bill, Parliament might be tempted to use it. That was the whole purpose for which the noble Lord, Lord Goodhart, and I tabled it in the first place. If we cannot robustly protect the position of Parliament in relation to a Minister's conduct, I wonder what we are all for. I should like to test the opinion of the House.
My Lords, Clause 10 provides that if a Minister wants to appoint a judge as a member of an inquiry panel, he or she must consult the appropriate judge. The appropriate judge is the senior Law Lord for serving Law Lords. No doubt if and when the Constitutional Reform Bill is enacted, for justices of the Supreme Court the appropriate judge would be the President of the Supreme Court. The appropriate judge for the judiciary of England and Wales is the Lord Chief Justice of England and Wales; for the judiciary of Scotland it is the Lord President of the Court of Session; and for the judiciary of Northern Ireland it is the Lord Chief Justice of Northern Ireland.
The purpose of the amendment, which is very simple, is to require the consent of the appropriate judge instead of simply a requirement to consult him or her. I moved a similar amendment on Report. The main speeches on that occasion in favour of this amendment came from the Lord President, the noble and learned Lord, Lord Cullen of Whitekirk, and the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I was, and remain, happy to adopt both their speeches.
To summarise briefly, as this is a Third Reading debate, judges cannot always be spared from their job. That is especially true in the Appellate Committee of your Lordships' House, which has only 12 members, and it has been deprived of the services of one of them—the noble and learned Lord, Lord Saville—for the past seven years. There may also be circumstances where it is inappropriate for any judge to chair a particular inquiry. There is a danger if the issues are too political, because the involvement of a judge may be seen as harmful to judicial independence; or the subject matter may be inappropriate for a judge to act as chair. One possible example of that was the inquiry chaired by Lord Wilberforce, many years ago, into the dock labour system. He produced a report that was widely regarded as not being the high point of his otherwise extremely prestigious career.
As the noble and learned Lord, Lord Cullen, said, it is difficult for a judge to turn down an approach from the government to chair an inquiry. In England and Wales up to now, the Lord Chancellor has been the head of the judiciary. It is fairly obvious that he could hardly ask himself for his own consent to the appointment of a particular judge to chair an inquiry. But the forthcoming enactment of the Constitutional Reform Bill will change that, and the Lord Chief Justice will be head of the judiciary and, under the concordat that accompanies the Constitutional Reform Bill, he will be responsible for judicial deployment. We believe that it is appropriate that his consent should be required. The noble and learned Lord, Lord Woolf, argued the case very strongly on Report. He is unable to be here today because he has to chair a meeting of the Judges' Council, but he has told me that his views remain unaltered since he expressed them on Report.
I believe that the arguments apply a fortiori to the smaller judicial bodies in the Appellate Committee, in Scotland and in Northern Ireland. It is in the interests of everyone, including the Government, that if a judge is to be appointed to an inquiry he should be appointed by the joint agreement of the Minister and the appropriate senior judge. I believe that this is a significant amendment. I beg to move.
My Lords, if the Minister does not agree to this amendment, can she explain to us what is meant to happen? For example, she wants Lord Justice Bloggs to chair an inquiry. She asks the Lord Chief Justice, who says, "No, I can't spare Lord Justice Bloggs, and anyhow this is a wholly unsuitable matter for a judge to hear". She is unconvinced by the Lord Chief Justice, so she goes off to Lord Justice Bloggs and says, "I want you to chair this inquiry. I should point out that your boss, the Lord Chief Justice, doesn't want you to do it, but I want you to". How on earth is the poor man meant to make up his mind? Is he meant to kick the Government or the Lord Chief Justice in the teeth?
In practice, if the Lord Chief Justice says, "No, I am sorry", it is impractical to go to the judge himself and say, "Although the Lord Chief Justice says he can't spare you, I want you to do this. It is your public duty. You do it, and forget what the Lord Chief Justice says". That is impractical. The Minister must bend to the inevitable and accept that this amendment recognises what the position will be in reality.
My Lords, if one is to call a spade a spade, it is arrogant for the Government to say that they will be the sole arbiter of when a judge should be appointed and which judge it should be. The point has already been made that, under the concordat, deployment is a function of the judiciary. It is important that the Lord Chief Justice is in a position to estimate, having regard to the nature of the inquiry, to what extent—since there is likely to be a dissatisfied opposite party whichever way he decides—it will reflect on the standing of the judge when he returns to do his ordinary duties. And, to go one stage further, the Lord Chief Justice can, having regard to the controversial nature of the decision, estimate to what extent it might reflect on the standing of the whole judiciary. This is essentially a matter for the Lord Chief Justice to bear in mind. This refusal to concede the point makes the Government look very shabby.
My Lords, I entirely agree with the noble Viscount, Lord Bledisloe. He is absolutely right. I shall add one thing: in the Arbitration Act 1979, it is provided that a judge can act as a judge-arbitrator, with different systems of appeals as a consequence, but before accepting that appointment, the Lord Chief Justice has to consider whether the ordinary course of business will be held up by not having that judge. That is peculiarly a matter for the judiciary, which is an independent estate of the realm. I shall not use the word "arrogant", which was used by my noble and learned friend, but, accepting, as I thought they did, the independence of the judiciary as a separate estate of the realm, I cannot understand how the Government can resist this amendment.
My Lords, your Lordships will, no doubt, think that by this stage I ought to have learnt to exercise some discretion rather than valour, surrounded as I am by distinguished lawyers—in front of me, behind me and to the right of me—but I think that this amendment goes too far. Distinguished judges are capable of knowing whether an inquiry would be appropriate for them and whether it is timely. It is entirely right to consult the Lord Chief Justice, but this amendment pushes that to an unreasonable point. The object of the Bill is to achieve a proper balance and to ensure that sensible people can arrange business in a sensible way. I hope that this amendment will not be pushed to such a degree.
My Lords, I agree that a person who has been appointed as one of Her Majesty's judges—whether in England and Wales, Scotland or Northern Ireland—will be able to have a view about whether it is appropriate for him or her to take an individual inquiry. But the question of judicial resources is not a matter for an individual judge. He or she is deployed by the head of the judiciary in his or her jurisdiction to take trials as and when required. The individual judge has no responsibility, as I understand it, for making sure that the resources available to the judiciary are adequate to discharge the responsibilities the judiciary has in particular cases. The head of the judiciary in the jurisdiction has that responsibility.
It is extraordinary that the Government should think that they ought to be able to invite to preside over an inquiry someone who has responsibilities in an area over which, for example, the Lord Chief Justice in England and Wales has control and responsibility without being able to secure the consent of the Chief Justice to that person being taken out of that area of deployment and deployed on something completely different, which is bound adversely to affect the total manpower—or perhaps I should say judge-power—available to the Chief Justice to employ in discharging his or her resources. I also cannot understand how the position referred to would be resolved in practice. My main point is that the proposal would fudge the responsibility of the senior judge for adequately securing judicial resources for the task to which he or she has been called.
My Lords, it is neither arrogance nor shabbiness that drives this Minister to take a different view from all those, apart from the noble Lord, Lord Laming, who have spoken. Being a non-lawyer, I may have approached the issue from a slightly different direction.
In Clause 10 we have tried to recognise judicial independence, and to be clear about our understanding of it. We take seriously our responsibility to consult the Lord Chief Justice. Indeed, we are required, having put it in the Bill, to take note of what the Lord Chief Justice has said, and to take the issues he or she has raised into account. However, the responsibility for deciding whether to take on an inquiry rests with the individual judge. The notion of "boss" was used to describe the relationship between the Lord Chief Justice and an individual judge. I do not consider that to be the traditional relationship between a boss and an individual judge, but there are issues about a judge being allowed to make that decision.
The question of resources is important. On the one hand, one could argue strongly, as noble Lords have done, that the Lord Chief Justice would be particularly minded to consider that question; I accept that. I am sure that the present Lord Chief Justice, and any future one, would take that extremely seriously. However, the purpose of the Bill is to deal with events of such importance—it is hard to indicate what they might be—that have shaken public confidence, when there are real concerns about what has happened to an individual, or to a system within government, that need to be considered carefully and investigated properly. Noble Lords on all sides have talked about the important role that judges, senior or otherwise, can play in that regard, and I agree with them.
The issue of resources has to be weighed by someone against the need for the issue to be investigated thoroughly and properly. It could be argued that asking any distinguished person to chair an inquiry, be they a senior member of the medical profession or of another organisation, will have resource implications, which should be taken seriously. In the overall scheme of things, considering the seriousness of the inquiry being undertaken, I contend that sometimes an issue is so serious that it is crucial that someone with great standing looks at it, and does so quickly, and that we should have the ability to say that that overrides issues of resources. That is the critical dividing line between us; it is not arrogance or shabbiness.
We believe it is right to consult the Lord Chief Justice or the other senior judges within the Bill; that it is right and proper to take on board their concerns and considerations, and for them to make their concerns known, as they will, to Lord Justice Bloggs, to quote the noble Viscount, Lord Bledisloe. Notwithstanding those important issues—which perhaps might be resolved in other ways—it is still right and proper that the Minister should be able to say, "I believe that this is the right person to give us the public confidence we need, and I would like to ask them". It is then for that individual of standing to weigh up the considerations between the issues that have been put forward by the Lord Chief Justice and the Minister, as I have absolute confidence that our judges would do, and say yes or no. It is that issue that divides us, and no other.
Ultimately the question is who has to decide that an inquiry is so important that someone of stature and standing is needed. Even though there will be resource issues for that person's profession—in this case, it happens to be the legal profession, but there are several others it could be—I believe I should be able to go and ask them, and they should have the right to say no. It is for that reason that I cannot accept the amendment.
My Lords, with great respect, before the Minister sits down, what is at issue here is the resources not of the legal profession but of the courts, which are part of the judicial arm of Government. The Lord Chief Justice for England and Wales, not a Minister of the Crown, has been charged with the responsibility for that. Surely it cannot be right for the Minister in the executive government to be able to overrule the decision of the Lord Chief Justice upon whether a person can be spared from his judicial strength in order to perform a particular act. Of course, there are always possibilities for negotiation. For example, the consent of the Lord Chief Justice might be secured by the executive asking that vital question.
My Lords, I am sorry if I misspoke. I am not a lawyer, so I am afraid I do not always use the right terminology. The noble and learned Lord will just have to forgive me for that.
Negotiation is important, and it is there in the consultation process in the Bill. The Lord Chief Justice will make representations on the issues, and the Minister will consult. I doubt there would be many circumstances under which, if the Lord Chief Justice felt strongly, the Minister would be minded to do anything other. However, within legislation, one has to consider the absolute positions. It is our view that if it was felt that it was in the national interest, regardless of the resource question—and there would be an equal issue regarding the use of resources in any area of life—one must nevertheless be able at least to say to the senior person one is looking for, "In the context of this incredibly important event that has taken place, where public confidence in a particular aspect of public life has been rocked, I would like you to take this on because in the eyes of the government you would be the right person". It is only that that divides us.
My Lords, before the Minister sits down, does she agree that this section of the Bill, as now stated, does nothing different to the judiciary than to any organisation from which someone may be drawn to chair an inquiry? In other words, there has to be discussion and negotiation.
My Lords, discussion and negotiation are a critical part of the process. As we have indicated, we have specifically put within Clause 10 the consultation with the Lord Chief Justice and the other appropriate senior Law Lords, and so on, to ensure that we have covered that point. The Government's contention is that when there are issues of such national importance, we must be able at least to ask the individual. The resource issue is, in a sense, to be played into that equation, but not to be the overriding factor, for the reasons I have said, about any other profession we might be looking to bring in to chair an inquiry.
My Lords, I am most grateful to all Members of your Lordships' House who have spoken in the debate, and for the considerable weight of support that the amendment received. I am not disturbed by the fact that both speakers on the other side were the only two speakers who were not lawyers—the noble Lord, Lord Laming, and the Minister. I am particularly grateful to the noble and learned Lord, Lord Mackay of Clashfern, who speaks from remarkable experience—as a former head of the Scottish judiciary as Lord President, a Cabinet Minister as Lord Chancellor, and the former head of the judiciary in England and Wales as Lord Chancellor.
It has been suggested that the decision should rest with the individual judges, but I do not think that correct. After all, the judiciary is one of the three branches of the constitution, and a Minister, as a member of the Executive, should not have the right to call on an individual judge to act as chairman of an inquiry. Whether a particular judge is released to take part as chairman of an inquiry is properly a decision for the judiciary as a body, expressed through the Lord Chief Justice as its head. Constitutionally, it is absolutely correct that the decision should be taken jointly by the Minister and the Lord Chief Justice.
As the noble Viscount, Lord Bledisloe, said, it is in any case difficult to imagine a judge accepting an appointment to chair an inquiry if he or she knows that the Lord Chief Justice, although consulted, has not agreed. The Minister said that the issue may be critical. There may be critical issues but, if it is true and appropriate that a judge should be selected to chair a particular inquiry, I cannot imagine that a Lord Chief Justice would refuse to make a judge available for that purpose.
The amendment seems important, and I wish to test the opinion of the House on it.
My Lords, though they are not grouped together, Amendments Nos. 4 and 5 and Amendments Nos. 13 to 16 raise essentially the same issue. In our view, the Government have allowed the Minister too much freedom to interfere with an inquiry once it has been set up. Too much freedom to change the composition of the inquiry, to determine when the inquiry will terminate, to interfere on matters of evidence and privacy and over the publication of the final report.
Were my view on all of these issues shared by the noble Lord, Lord Goodhart, and the Liberal Democrat Benches, I would be asking your Lordships' House to vote on all of these amendments. However, for reasons which the noble Lord has explained, the Liberal Democrats take a different view. Therefore, I shall speak to these amendments but not put them to the vote.
Let me first take Amendment No. 4. The provision allows the Minister only to consult the chairman of a committee when deciding whether or not to change its composition. In our view, the circumstances in which this can be done are cast so widely as to allow a Minister who was embarrassed by the direction that a public inquiry was taking to insist on the removal of a member of the panel for the wrong reasons. The Minister disagrees with me on that, saying that the terms are sufficiently tight—and that, at any rate, it would be inconceivable that circumstances would arise in which a Minister could behave so improperly. The Minister is again being too complacent about that and ought to reflect further, before she insists on coming to the same conclusion. I beg to move.
My Lords, I think that the noble Lord, Lord Kingsland, would accept that I have striven—successfully or otherwise—to understand noble Lords' concerns on all of the amendments being put forward. Indeed, in talking both to officials and to those, far greater than myself, who draft the amendments, we have striven to ensure that we have covered what are valid and important points.
The noble Lord and I agree that it would be inappropriate to have a widely cast power enabling the Minister to remove somebody on a whim, for the reasons given. The noble Lord has indicated to me that the concern comes down to the phrase within the Bill: "any other reason". If I have read the noble Lord's issues properly, he is concerned that the phrase is very wide. Perhaps "any other reason" could mean "because I do not like the look of you", or "because you are causing me a bit of a problem".
I understand that concern—and have checked carefully with officials to ensure that the language in which the phrase is couched is indeed a standard legislative phrase. It has to be interpreted in the context of other reasons listed. So, if I may quote the Bill, it allows the Minister to do so, if:
"for any other reason, the member is unable to carry out the duties of a member of the inquiry panel".
So the Minister cannot decide to sack somebody for no good reason, because the member would still be able to carry out their duties. That is the constraint within the provision; the only grounds on which the Minister can do so are if the person is unable to carry out their duties as a member of the panel.
We have talked at previous stages about physical or perhaps, sadly, mental illness. The provision is intended to capture any similar reasons that we have been unable to predict, but can only be used on the grounds that members are not able to carry out their duties—not because the Minister has an alternative view. While not being complacent, because I am confident that is what it means, I think that we have captured what the noble Lord, Lord Kingsland, seeks to achieve regarding the right context. For that reason alone, I hope that the noble Lord will accept that I—having checked and been very clear what it relates to—have done my job and that he will feel able to withdraw his amendment.
My Lords, I am most grateful to the Minister for her response. The Minister has said that she has striven to meet my requirements. I remember that once, in the late 1980s, I had the privilege of a meeting with the noble Baroness, Lady Thatcher, who said in the course of our discussion that "trying is not enough". The Minister may have striven but striving is not enough. Nevertheless, I accept that she has given this her full attention and, even though, in my submission, the Minister has not achieved the necessary security in the Bill, I do not intend to press the amendment this afternoon, for the reasons that I have given. I beg leave to withdraw the amendment.
My Lords, I am sure that historians will describe this amendment as the noble Lord, Lord Evans of Temple Guiting, amendment because it featured a number of exchanges between noble Lords on the Floor of your Lordships' House in the course of which the noble Lord always sought to be helpful and, during which, he retained his legendary sense of humour.
The amendment raises, in starker terms than the previous amendment, the danger of ministerial interference. Clause 14 (1) states:
"For the purposes of this Act an inquiry comes to an end—
(a) on the date, after the delivery of the report of the inquiry, on which the chairman notifies the Minister that the inquiry has fulfilled its terms of reference, or
(b) on any earlier date specified in a notice given to the chairman by the Minister".
Clause 14 (3) states:
"Before exercising his power under subsection (1)(b), the Minister must consult the chairman.
Our amendment would require the Minister not only to consult the chairman, but also to obtain the chairman's approval. I readily accept that there is another approach to constraining the excessive power given to the Minister by this clause, which would be to recast subsection (1)(b) in a way that substantially reduces the unfettered discretion that it gives to the Minister. We would be happy with one or other of those solutions.
The Minister, thoughtful and thorough as ever, kindly sent me a letter about this matter and I greatly appreciated that she did so. She has clearly given considerable thought to the issue and, although she has been unable to conclude in my favour, I salute her for the efforts that she has made. Because I have had the advantage of reading the letter that the Minister sent me, I think that I can anticipate what she is likely to say in response. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Kingsland. I have striven again in this amendment to see what we might do. I appreciate the work done by my noble friend Lord Evans, with his beautiful good humour, to ensure that we did what the noble Lord, Lord Kingsland, wanted, which was to look again. I considered this in the context of the amendments that we moved at Report to make sure that we had considered the issues properly, and we have included the obligation to consult the chairman, which was not there before.
I have said on a number of occasions that one of the issues is, "Where does the buck stop?" and I believe that, at the end of the day in an inquiry, the buck must stop with the Minister. The Minister sets up the inquiry and, as we discussed earlier, it is the Minister who is accountable to Parliament—something that I readily accept as being of critical importance in our democracy.
I must tell the noble Lord, Lord Kingsland, that we did think about a general form of words along the suggestion that:
"The inquiry can be brought to an end when it serves no further useful purpose", for example. Although we recognise that it is easy to capture a general intention in everyday language, it is extremely difficult, as noble Lords with experience of this will know, to draft into statute something that conveys what the noble Lord is trying to say, because an inquiry's purpose is not defined in statute.
Some may seek to argue that the inquiry will serve some purpose, even if its benefits will not, in the view of the Minister, be worth the cost to the taxpayer. Such a test will inevitably always be subjective, and I suspect that it could lead to greater arguments without providing the safeguard that the noble Lord is searching for. I commit formally in your Lordships' House to ensuring that the Explanatory Notes give a much clearer guide to the types of situations in which the power might be required. In those notes, we will set out the examples that will illustrate the point of the provision, which I hope will be helpful in this context. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I am most grateful once again for the Minister's response, although I am naturally disappointed that she is unable to meet the terms of my amendment or the suggested alternative. I am reassured by her undertaking to tighten up the wording in the Explanatory Notes so that they express the limited intention that she has stated to your Lordships' House that the clause would have. In those circumstances, I am happy to beg leave to withdraw the amendment.
My Lords, in the annals of history, I hope that this amendment will go down as the amendment of the noble and learned Lord, Lord Howe. I am very grateful to the noble and learned Lord, who has shared his concern with me on a number of occasions. He has given me the benefit of reading some of the articles that he has written and pointed me in the general direction of looking very carefully at some of the issues that I know he feels strongly about from his own experience.
The amendment that I move today underlines the existing duty in common law to act fairly. It makes absolutely clear that the chairman must follow fair procedures. Although safeguarding costs is an important element in conducting inquiries it must not compromise fairness. The amendment would enshrine that balance. One of the duties placed on the chairman to ensure that he is acting fairly will be to assess whether certain participants should be granted some form of legal representation or advice. That duty will be supplemented by rules under Clause 41 which will ensure fair procedures. I beg to move.
My Lords, I would like to express my appreciation not just for the kind words that the noble Baroness has just uttered but, more widely, for my appreciation of the manifest care and attention that she has given to this question in the meetings that she has had with me. I thank her a thousand-fold if she has really read my articles as thoroughly as they deserve. I accept warmly this important and valuable concession. As always, one would like to have had the whole cake, but I would certainly not want to see the best becoming the enemy of the good.
Clearly, the Minister has been striving on this topic and striving with success. If my noble friend Lord Kingsland might give her three—or even, because of his generosity, four—out of 10 for striving, I would readily give her eight or even nine out of 10. I have been more fortunate on this occasion than he has been.
I also appreciate what she had to say about the extent to which this will be governed by the rules made under this Act. I hope that the debates that we have had at each stage of this legislation will help to focus those rules and that, in light of the way in which she has finally dealt with this, care will be taken to avoid any kind of presumption against the concept of representation. Fortunately, over the past 10 years or so, there has been a great deal of distillation of wisdom on this matter starting under the commitment to the Council on Tribunals by my noble and learned friend Lord Mackay of all these questions following the Scott inquiry.
There has emerged, not least as a result of this legislation, the existence of a well-informed unit at the heart of government. I like to think that will nestle in what may be the Lord Chancellor's Department, and that it will be consulted regularly. Whatever we may say in these debates, in the final analysis the management of these inquiries—their composition and terms of reference—depends above all on judgment. The concentration of that judgment and experience in a unit of experienced people in this department would mean that there will always be proper consultation—"Have we got the right guy to chair this? Have we got the right group to support him?" All those questions deserve fuller examination than they have received on some occasions. If these debates serve to fortify that commitment, then I am even more pleased to step up my award to nine, lurching towards 10. I thank the Minister very much for what she has managed to achieve.
My Lords, briefly, while we were unable to support the amendment in the form in which the noble and learned Lord, Lord Howe of Aberavon, introduced it in Committee, we always felt that he had raised a serious issue and that his concerns were justified. It is clearly right that the chairman should be encouraged to ensure that fairness rules the day in deciding whether representation should be allowed to people involved in inquiries. For that reason, we are glad that an amendment has been produced that is acceptable to the noble and learned Lord.
My Lords, I thank the noble and learned Lord, Lord Howe of Aberavon, for his comments. I will continue to strive to achieve a 10 out of 10 from somebody, although I fear it may never happen. I hope that noble Lords will feel able to support this amendment.
My Lords, during the passage of the Bill, we have returned again and again to the issue of costs. One of my main concerns has been the lack of transparency about the budgeting process. My Amendment No. 7 would require the chairman to publish an estimate of the likely costs of the inquiry within one month of the setting-up date. This would be in line with the conclusion of the House of Commons Select Committee on Public Administration in its recommendation in paragraph 127.
Without a budget there can be no real hope of proper cost control. Having an estimate on the public record at the outset would be a very powerful tool in ensuring that the minds of the chairman and the commissioning Ministers were focused on the issue of costs. I accept that this would be a difficult estimate to make. Similarly, however, it is difficult to estimate the cost of constructing a building, for example. The Scottish Parliament building springs neatly to mind. That does not mean that the budgeting process should not take place. It should take place, and its conclusions should be made public.
I have repeatedly asked what estimate was made of the costs of the Bloody Sunday inquiry before it began. I ask the Minister again, in the hope that she has those figures to hand. It is clear that had the noble and learned Lord, Lord Saville, announced that something north of £150 million would be spent on the inquiry, then there would have been an outcry. Action would have been taken before the money was spent.
I understand that the Minister is similarly exercised about the issue of costs, and is supportive of having the estimate published in principle. I have taken on board the Minister's concern, expressed on Report, that the chairman must be given time to consider how the inquiry should be taken forward in detail before the estimate is made. My current amendment, therefore, specifies a period of one month for this to take place. I beg to move.
My Lords, briefly, we on the Front Bench of the noble Viscount, Lord Goschen, entirely support his amendment. It is an extremely constructive contribution to the discussion of the Bill. It reflects foursquare one of the key objectives that the Government are trying to achieve. I hope that the Minister will receive it generously.
My Lords, I appear on behalf of the as yet unformed trade union representing chairmen. I have, post-retirement from the Bench, conducted four inquiries for government. Before I became a judge, I served as part of the Crown team in two 1921 Act inquiries. I am absolutely confident that if you had asked the noble and learned chairmen of the two 1921 Act inquiries what it was going to cost, they would have looked at you in astonishment and said, "How can we possibly tell?"
Furthermore, of course chairmen avoid unnecessary costs. A conflict between an estimate, which they certainly should not have given, and how the inquiry is to be resolved should not be allowed to arise.
My main objection is that it is quite impossible to know. Possibly Ministers may know, but I am quite certain that nobody knew when the Saville inquiry started. What, then, would be the point of this exercise, even if it could be undertaken?
My Lords, I follow on from the noble and learned Lord, Lord Donaldson of Lymington. I have a great deal of sympathy with the main intention of this amendment. My concern is solely about its practicability.
I have very limited experience, but I shall draw on it for a moment. When I was persuaded to take on the Victoria Climbié inquiry, the best estimate that Ministers had—bearing in mind that this little girl had only been alive in this country for ten months—was that it would be necessary to see something like 30 witnesses. We had to secure the files from four social services departments, three housing departments, two specialist child protection teams of the police service, two hospitals, and so on. It was very difficult to get all the files. We had to use powers to secure the range of documentation. From studying those files over many months, we came to the conclusion that we would need to get witness statements from 277 people. Furthermore, it was not possible to predict what witnesses would say in their oral evidence. That led to other people being identified as possible witnesses to the inquiry.
I share the concern of the noble Viscount, Lord Goschen, about the cost of some inquiries. That cost, out of the public purse, in effect deprives public services of their proper development. I am concerned, however, that there would be an expectation of a chairman to give an estimate within a month. In the Victoria Climbié inquiry, we were well into it before it was possible for me to give the department any indication of what the final figure would be. I know that that is only one inquiry, and one limited experience. I hope, however, that the noble Viscount will accept that we should be wary about binding chairmen into an impossible situation.
My Lords, I will add one or two syllables of advice, responding sympathetically to the point raised by my noble friend Lord Goschen. I suggest that the management of the inquiry may well be more economical if some time is taken before it gets stuck into its work.
I invoke one experience: the Aberfan inquiry started very quickly and understandably spent a great deal of time listening to all the evidence about ancient footpaths over the mountain slopes, the location of tips, and so on. It took some weeks and months to discover the availability of a mass of aerial photographs taken decades before the accident happened, which enabled one to see, as a matter of fact, the answers to the questions about which ancient citizens had been giving conflicting oral evidence. More haste less speed is one piece of advice that is worth putting in.
Harking back to my more youthful days, another piece of advice is that it certainly is not necessary for representatives at inquiries of this kind to be double-barrelled, senior Queen's Counsel, supported by juniors on a varied and open scale. Much of the work can and should be done, not by novices, but by people who earnestly seek to advance their cause and their career. Those are two pieces of very practical advice that may go some way towards meeting the objectives of my noble friend. I apologise for taking up so much time to utter them.
My Lords, I believe that we are all of one mind in believing that the good management of costs is an important part of an inquiry. To the noble Viscount I say that the procedure rules are a critical part of that. If we want to ensure that we keep down final costs—I use the word "down" advisedly because we also want to ensure that inquiries have the resources that they need to carry out the jobs they are asked to do—there needs to be sensible control of expenditure during the proceedings.
There are merits in publishing cost estimates, and I am very glad that the noble Viscount took into account the matters that we raised about allowing the panel to get to grips with the job, as the noble and learned Lord, Lord Howe, said. The noble Lord, Lord Laming, indicated that from his experience it can take time before one is fully appraised of the situation and fully able to determine the costs.
The noble Viscount knows that I am reluctant to put such a provision on the face of the Bill. There are two reasons: first, I believe that the place for such a provision is in rules because I would want to have further conversations about whether four, five or six weeks is the appropriate time. From what the noble and learned Lord, Lord Howe, said, four weeks may be rather too soon for an initial estimate to be made. I do not know, but there are issues in relation to that.
The second reason is that I would like to undertake more than a simple exercise into the cost estimate; for example, I would want to see whether we could have updates on the progress against the estimates, or whether the estimates or figures should be broken down. To meet the point raised by the noble and learned Lord, Lord Donaldson, one could consider what one thinks the cost might be and one could reflect on the costs as the inquiry develops. As the noble Lord, Lord Laming, said, when one moves from 30 witnesses to 277 witnesses there are implications for the public purse, but those are appropriate implications. Those points are important and estimates should not simply be set in stone to the point where one cannot reflect on them subsequently, which I know is not what the noble Viscount wants anyway.
I am very keen to have this matter dealt with in rules. When we publish the rules I intend to cover estimates of costs, and I see updates on progress against those estimates and so on as being particularly relevant. The noble Viscount knows that I must consult on the rules, as I have already indicated that I will, because of the other concerns. I can reassure the noble Viscount that we shall cover this point in rules.
I apologise to the noble Viscount that I did not answer the question on original costs of an inquiry properly. There is not an official figure, but I have a figure of £15 million which was the original thinking, as it was put to me—a guess that is on the file. There was not a formal estimate and that is why I have not been able to give a figure, but I am happy to put that in the public domain because I believe that the noble Viscount will be content that that is as close as I can get to an official estimate.
I intend to put in rules the fact that we need to consider having an estimate and we need to consider how we look at the estimate against progress. We also need to consider ways in which we might break down the estimate so that we can look, for example, as the noble and learned Lord, Lord Howe, has said, at issues of representation and so on. The noble Viscount can be reassured that I feel very strongly that this is an important issue. I hope that he will take heart from that and feel able to withdraw his amendment.
My Lords, I thank the noble Baroness for that response. There now seems to be very little between us. I am not wedded to the fact that the point has to be on the face of the Bill. I want to ensure that such an estimate is made. The Minister has made her view clear that an estimate should be made and that she will consult on the best way to do that. On the timetable, I am not wedded to four weeks or six weeks, but to an appropriate period. I am happy to accept the Minister's undertaking that she will consult on the issue of an estimate.
However, I cannot accept the point made by the noble and learned Lord, Lord Donaldson, for whom I have great respect and who is very experienced in this area, particularly on maritime inquiries, a matter on which we have had many dealings with each other. No longer do I believe that there is an area of public expenditure where very substantial sums of public money can be used without at least a budgeting process taking place. I believe we are now past that point. However, I thank the Minister for her response and I am happy to accept her undertaking. I beg leave to withdraw the amendment.
My Lords, perhaps I might adopt and slightly adapt the words of Chorus just before the curtain goes up on Shakespeare's "Henry V":
Those of your Lordships who read the article in Friday's Times and the first leader in Saturday's edition will be aware of the issue between him and the Government: should the Executive have the power, after a public inquiry has commenced, to exclude the public and/or evidence before such an inquiry?
As a sitting Law Lord—a Lord of Appeal in Ordinary—the noble and learned Lord, Lord Saville, is party to the current decision of the Law Lords not to take part in the legislative process. I, with little other than alphabetical merit in this matter, have been asked to be the fall guy—hence my appearance before your Lordships.
In a sentence, the point of the noble and learned Lord, Lord Saville, is that the power given to the Minister under Clause 19 will fatally compromise the independence of the inquiry and damage public confidence in the independence of that inquiry and in its decision. Extensive correspondence was initiated by the noble and learned Lord, Lord Saville, between him and the noble Baroness, Lady Ashton, which commenced last January and ended today. Last Friday, I caused copies of that correspondence, with the exception of today's letter, which has been dealt with by the noble Baroness, Lady Ashton, to be placed in the Library.
I can sum up the rival contentions in that correspondence briefly. I begin with the letter of the noble and learned Lord, Lord Saville, of
"There is . . . one matter that seems to me to be of such importance that I should write to you. This concerns the present provisions of Clause 17"— which is now Clause 19—
"of the Bill, giving the relevant Minister the power to impose restrictions at any time before the end of the inquiry on attendance at the inquiry, or on the disclosure or publication of any evidence or documents given to the inquiry".
"I take the view that this provision makes a very serious inroad into the independence of any Inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities may be in question".
He added that he,
"would not be prepared to be appointed as a member of an inquiry that was subject to a provision of this kind".
He took the view that,
"it is for the inquiry panel itself to determine these matters, subject of course to the right of those concerned to challenge in court any ruling", or finding that the panel might make or refuse to make.
The noble and learned Lord, Lord Saville, pointed out that his panel colleagues—namely, William Hoyt, formerly Chief Justice of the Canadian province of New Brunswick, and John Toohey, formerly a justice of the High Court of Australia—both told him that they too would not be prepared to accept an appointment to an inquiry that was subject to a provision of this kind for the reasons which he gave.
The noble and learned Lord considered whether there would be a basis for asking the chairman whether he might find it acceptable, as no longer interfering with the independence of the inquiry, if there was a discussion first before any decision was made. That issue has been raised on a number of occasions. But the Bloody Sunday inquiry examined security services and public interest immunity applications on the basis of an application being made to the panel and heard in the usual way. The same could apply equally to the Minister.
Virtually at the end of his letter the noble and learned Lord said that any inquiry must be, and must be seen to be, acting independently and impartially. He sent a copy of the letter to the Lord Chief Justice and the senior Law Lord.
The Lord Chief Justice wrote to the noble Baroness in these terms:
"I thought it would be of assistance to you to know that I support the views that he [the noble and learned Lord, Lord Saville] expresses. As I understand it those views do not mean that, in appropriate circumstances, the Inquiry would not take steps to ensure the protection of the public interest.
"If there are likely to be problems involving disclosure, the answer is to appoint Inquiry members who have sufficient experience and ability to deal with those problems".
The Minister replied on
The noble Baroness said that Ministers being able to restrict public access to an inquiry was not a new idea and that it had occurred in a number of recent inquiries, which she itemised. She pointed out that for certain reasons Ministers decided that recent health inquiries should be held on a partially private basis.
The Minister stated:
"The purpose of the restriction notice procedure set out in clauses 17 and 18 [now Clauses 19 and 20] . . . is to provide a menu of options, starting from fully public which is recognised as the aim to be achieved where possible, and allowing suitable degrees of privacy to be specified for any part of the proceedings".
On the concern that the giving of a restriction notice might damage or destroy public confidence in the inquiry and its findings, she accepted that that raised,
"a very real issue and it is for this specific reason that the provisions in the Bill require the Minister to weigh the impact on public concern that a notice would have against the risk of harm or damage, or reduced effectiveness".
On the question whether it might be possible for the chairman to make restriction orders which could have exactly the same impact as restriction notices, the noble Baroness said that the criteria for issue of orders and notices were identical. She accepted that,
"cases can arise in which the quantity of information which requires restriction of public access is so great that the PII [public immunity interest] approach could not be adopted".
She agreed that,
"restriction notices should be subject to the consent of the chairman or panel".
She could see the point that while that had some attractions,
"it would result in the panel becoming formally associated with the Minister's decisions".
I do not think that I need go further into the various other matters in the Minister's letter, which the noble Baroness will bring out if she thinks I have unduly shortened them.
The reply to that letter was on
"'the actual work of the inquiry' or compromising the independence and impartiality of its report".
The noble and learned Lord said that,
"the difficulty is that the imposition of restrictions by a Minister is likely in many instances to have a seriously damaging effect on public confidence in the independence of the inquiry, which in turn could lead to interested parties or witnesses withholding their co-operation, thereby distorting the evidence or submissions available to the inquiry and thus both diminishing the ability of the inquiry to reach unbiased conclusions and damaging the credibility of those conclusions".
The noble and learned Lord readily accepted that,
"there are situations in which it is reasonable to set up an inquiry on a private or partly private basis. Should a Minister decide to take this course, then it will be for that Minister to seek to explain (if the decision proves controversial) why this is preferable to a fully public inquiry. Those invited to sit on the panel will know the terms on which the Minister proposes to set up for the inquiry and if dissatisfied with those terms, will have the opportunity to decline appointment. However, Clause 19 is not concerned (or solely concerned) with the stage of setting up the inquiry, but as drafted enables the Minister to impose restrictions at any stage during the life of the inquiry. Thus the Minister could establish an inquiry on an apparently public basis, and then alter that basis".
I think that I have summarised sufficient of that letter. Today's letter essentially joins issue with that of the noble and learned Lord, Lord Saville. In thanking the Minister for her courtesy in replying in such detail to deal with his concerns, the noble and learned Lord stated:
"Sadly, they remain and accordingly I have decided to make them public".
That is how the articles came to be written in the Times on Friday and Saturday.
I submit that Clause 19 typifies the Executive's relentless drive to impose and extend their control over Parliament and the judiciary. The amendments, which are self-explanatory, are an important but relatively modest way to rein in the Executive. Accordingly, I beg to move.
My Lords, the issue of restriction notices was dealt with in terms at Report. Indeed, so exercised were we on these Benches by the inclusion of restriction notices in the Bill that we asked the House to vote on the matter. The Government won the day. I regret that I was unaware of the views of the noble and learned Lord, Lord Saville of Newdigate, on these notices at the time of that debate. If I had been, I am sure that I would have cited them in support of my amendments, which were rather more radical than those tabled by the noble and learned Lord, Lord Ackner.
As always, I listened with great interest to the noble and learned Lord's speech. I support everything that he said. Indeed, that must follow from my speeches on the issue at Second Reading, in Committee and at Report. That is part of our more general concern that the Government have given themselves too much power to intervene in the whole process of inquiries. Our view remains that the Government should have the power, through parliamentary approval, to establish the inquiry, to select the members of the inquiry committee and to determine its terms of reference. Thereafter, it ought to be over to the chairman and his team to deal with the matter exclusively until the final report is published.
My Lords, I have seen the correspondence to which the noble and learned Lord, Lord Ackner, referred. His amendment moved in response to that correspondence is, as the noble Lord, Lord Kingsland, pointed out, similar to an amendment moved by the noble Lord that was debated and voted on at Report. We on these Benches voted against that amendment.
There is a difference between the amendment of the noble and learned Lord, Lord Ackner, and that of the noble Lord, Lord Kingsland, and I accept that the difference is important. The noble and learned Lord's amendment would permit a restriction notice to be made by a Minister on the setting up of the inquiry, but not during its course; the amendment of the noble Lord, Lord Kingsland, would have eliminated the power to make a restriction notice altogether. However, that difference is insufficient to alter our attitude.
At Report, in response to a speech of my noble friend Lord Lester of Herne Hill, the Minister accepted that a restriction notice would be subject to Article 10 of the European Convention on Human Rights and would therefore be lawful only if it were necessary for one of the purposes specified in Article 10.
I think that everyone would accept that some inquiries should be wholly or partly private—for example, the Alder Hey inquiry into body parts of dead babies. That can sometimes be foreseen and covered when the terms of reference are fixed, but not always. In practice, of course, a chairman would always be consulted on the making of a restriction notice and any objections by the chairman would hardly be overridden. A chairman could always say at the start that he or she would take the appointment only on the basis that the Minister would not issue any restriction notice. If such an undertaking is not sought or given, the chairman always has the nuclear option of resignation if he or she disagrees with the Minister's decision to impose a restriction notice. No government would want to face that.
On the other hand, I can also foresee circumstances where a chairman who is not a part of the political mainstream could be faced with a difficult decision and could say to the Minister, "I am prepared to accept your decision if you wish to make a restriction notice, but you are the politician; it is your responsibility; and you must carry the can". In many cases, it is appropriate for that decision to be taken by someone who is accountable to Parliament.
Given the constraints on ministerial action of Article 10, we do not see a danger in allowing the Minister to decide whether a restriction notice should be made. In reaching that conclusion, we bear in mind that any such decision will be subject to judicial review. We also note that the Government have accepted by amendments adopted at Report that the restriction notice will last only until the end of an inquiry. After that, restricted information will be subject to disclosure under the Freedom of Information Act, subject, of course, to the usual statutory exemptions. We welcome the fact that, as we originally proposed, the Bill disapplies the absolute ban on disclosure of inquiry documents that previously existed under Section 32(2) of the Freedom of Information Act.
In the circumstances, I must say that I think that the noble and learned Lord, Lord Saville, is being alarmist. I regret the fact that that argument was raised only at such a late stage of our proceedings. We will therefore be unable to support the amendments of the noble and learned Lord, Lord Ackner.
My Lords, briefly, I wholly support the documents advanced by the noble Lord, Lord Goodhart. I will not cover similar ground, because he has covered it very much better than I could hope to do. I think that some of the points raised in the newspaper article were misleading and would have benefited by being raised during our earlier deliberations. I am more familiar with inquiries that take place in the health service or in cases such as that of child abuse in social care.
The restriction orders proposed in this clause set out, as the noble and learned Lord, Lord Ackner, fairly said, a menu to be used appropriately in different and peculiar situations. Having been previously subjected to a judicial review alongside a Secretary of State who made decisions thought to be unreasonable—indeed the court found that he had behaved unreasonably; and me alongside him, which was a great shock to the system—I have to say that the safeguards in the Bill are sufficiently strong and I agree absolutely with the noble Lord, Lord Goodhart.
My Lords, this has been an interesting debate. As the noble and learned Lord, Lord Ackner, said—he quoted from it—I have been corresponding with the noble and learned Lord, Lord Saville, on this point. I placed a copy of my full reply in the Library this morning. I understand that the amendments were drafted by the solicitor to the inquiry of the noble and learned Lord, Lord Saville, and reflect the noble and learned Lord's view.
I have sought to correct the inaccuracies in a leader in the Times in particular by sending a letter to the Times over the weekend. Sadly, it was not published this morning as I had hoped. I wish to make it clear to your Lordships that the Bill does not give Ministers any power to decide what evidence an inquiry should hear: on the contrary; it gives inquiries full powers to collect and use all the evidence needed to establish the truth. I hasten to add that I am not suggesting that the noble and learned Lord, Lord Saville, does not understand that point, but the Times did not appear to.
The Bill makes it clear that an inquiry should be public unless either the Minister who sets it up or the inquiry chairman specifies otherwise. Noble Lords have referred in the course of the debate to particular instances; not least the Alder Hay inquiry where the relatives of children whose body parts have been kept asked that the inquiry be private.
The grounds on which either the Minister or the chairman can specify privacy are clearly set out in the Bill. That ministerial power is not new but the safeguards on its use are, which is important. We discussed the issue thoroughly when we debated the amendments in the name of the noble Lord, Lord Kingsland, on Report. On Division the House accepted the principle of the position, including the power to give notices during the course of the inquiry, to which the noble Lord had drawn the House's attention as his prime concern—if my reading of Hansard is correct.
I shall briefly explain the issues again. We know that as part of setting up the overall form of inquiry the Minister needs to make decisions about public access before it starts. We are all agreed that that is appropriate. However, as the noble Lord, Lord Goodhart, said, it is not always possible to predict what is going to come up. As the inquiry panel pursues its task it may encounter areas of evidence or evidence may be forthcoming that it had not anticipated when the inquiry began.
The chairman will often issue restrictions needed during the inquiry. If it comes across an unexpected area that it had not considered when the panel was appointed, it is possible that the chairman will not have the expertise or experience to measure the risk to national security or the impact on the economy or international relations, or whatever the issue is. Sometimes it would not be fair to expect the chairman to do so.
As the noble and learned Lord, Lord Ackner, indicated, the amendments are drafted in such a way that any restriction notice could be served at the time that the chairman is appointed under Clause 4 before the inquiry is set up in Clause 5. At that early stage the range of evidence that the inquiry needs to consider may be not at all well defined. It may not be possible to define well enough what degree of restriction on public access is the minimum necessary in the public interest, taking account of the criteria that I have indicated are set out for the first time in legislation in Clause 19.
One of the duties of Ministers is to protect public interest. That duty does not disappear when an inquiry gets underway. If they have set up an inquiry they are ultimately accountable both to Parliament and to the European Court of Human Rights for any damage that might result from it. If a person—heaven forefend—should die as a result of information being disclosed, the government not the chairman will be taken to court in Strasbourg for a breach of Article 2.
I agree that it is important that public confidence in the impartiality of an inquiry panel is not compromised. It has been one of the consistent themes of our debates on the Bill. But the risk of not issuing a restriction notice might also be great. I make it clear that the restriction is only about who can be in the room and what they might say about what they have heard. It does not restrict what witnesses say in or when they leave the room. It is purely about who is in the room and what they say about it.
It would be wrong to leave the legislation without allowing Ministers in unusual circumstances to be able to prevent such harm. It should require Ministers to weigh up the factors, which it does in Clause 19(4). In each case, there is determination of where the public interest lies. That is a longstop power, but an important one. I hope on that basis and not least because I have described the impact of the amendment before us and—I hope the noble Lord, Lord Kingsland, will not mind me saying so—because we debated the issue fully before the vote last time, the noble and learned Lord will be able to withdraw the amendment.
Although the noble and learned Lord, Lord Ackner, said that my correspondence was at an end, I am happy to continue to talk to the noble and learned Lord, Lord Saville, and to meet him and discuss the issues further as the Bill continues its progress. I have no hesitation in putting that offer on the table. I hope that on that basis the noble and learned Lord will be able to withdraw the amendment.
My Lords, I would like to stress how important the distinction is between the amendment that I have put before the House and the one that was previously voted on. The suggestion that this issue has already been decided by implication is wrong. We are concerned with the chairman's ability to maintain public confidence in the inquiry over which he and his panel are presiding.
There is no chairman who has had as long and as difficult as experience of manning an inquiry as my noble and learned friend Lord Saville. In the course he has achieved an ability to assess what the situation would have been in his highly sensitive inquiry if the Minister had at any stage intervened in order to control the privacy or the extent of the evidence.
My Lords, I am sorry to interrupt the noble and learned Lord, but I was specific that the only restriction that the Minister can have is on public access and what the public who attend can say about the evidence that they have heard. There is no ability in the Bill for the Minister to restrict what the witness says or the evidence that comes to the inquiry; it is quite the opposite.
My Lords, I am grateful to the Minister for her correction. Even with the Minister's limited ability, my noble and learned friend Lord Saville was able to say that if the Minister had used those powers in relation to his inquiry, public confidence, which he and his panel had managed to maintain, would have drained away. There is the assessment by a chairman now of vast experience as to what would happen if the Minister intervened as she Minister would wish to do.
The Minister remains like any other individual perfectly capable of making an application with regard to the form and nature of the type of restriction that he would like to see imposed. He like any other member of the public can make that application; and if discontented with the result, proceed to judicial review, as has happened in other cases in the past.
There is a world of difference between outlining at the outset the terms and extent of the inquiry and the powers of the chairman and his panel; and interfering at a later stage without defining that situation. My noble and learned friend Lord Saville would not have accepted the appointment had he known that the Minister was to have those powers. That, in my respectful submission, says everything that needs to be said. I would like to test the opinion of the House.
My Lords, the Question is that Amendment No. 8 shall be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think that the "Contents" have it. Clear the Bar.
Tellers for the "Contents" have not been appointed pursuant to Standing Order 54. Therefore, a Division cannot take place and I declare that the "Not-Contents" have it.
My Lords, I can deal with this group of amendments quite speedily. The issues have been extensively discussed in all earlier phases of the Bill. They deal with whether the Minister should have control over the publication of a report. The amendments would remove any role that a Minister might have in the publication of the report and would leave both the report's substance and the timing of its publication to the chairman.
The reason behind the amendment is exactly the same as that behind several earlier amendments concerning the balance of power in the inquiry process between a Minister and a chairman. It is wholly inappropriate that the Minister should be able to influence either the content or the timing of a report of an inquiry. I beg to move.
My Lords, as the noble Lord, Lord Kingsland, has said, we discussed the amendments in great detail in Committee and at Report, so I shall be brief. The clause introduces a new general obligation to publish reports. It reflects past practice by making publication generally a matter for the Minister—who will also lay the published report before Parliament under new Clause 26—but allowing for the chairman to publish it if that is more appropriate.
The person publishing the report has limited powers to withhold information, which is very important. As I have already indicated, Ministers have a duty to protect national security and the economy, and to protect individuals' rights under the European Convention on Human Rights. They have to be able to fulfil that duty.
Ministers, of course, will have access to the expertise to determine whether the disclosure of particular information is likely to cause damage. I know that noble Lords have concerns about the powers for the person publishing the report to withhold that information, but those powers are very limited Information can be withheld only if it is required by law or necessary in the public interest.
Clause 25 makes very clear that the reasons for withholding information "in the public interest" are very limited—for example, a risk of damage to national security or the economy, or a breach of a confidentiality agreement. Those risks have to be weighed against the extent to which withholding that material would inhibit the allaying of public concern.
We have introduced new subsection (7), which ensures that the powers to withhold information cannot override the requirements of the Freedom of Information Act. A person therefore could make a request under the Act for any information that had been withheld from a report, with a right of appeal to the Information Commissioner.
We believe that we have the balance right, especially with the introduction of new subsection (7). On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I am most grateful to the noble Baroness, as always, for her thoughtful reply. She has rightly identified the kernel of our concerns in Clause 25(4)(b), where the degree of discretion that is given to the Minister to withhold material is too wide; namely,
"as the person considers to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (5)".
It is true that the matters set out in subsection (5) are reasonably constraining, but they are not a conclusive list of what has to be considered. In our view, the discretion of the Minister is not sufficiently hedged about.
However, I am aware that my noble friend Lord Goodhart does not take the same view about this clause as I do. In those circumstances, I see no useful purpose served in seeking to test the opinion of your Lordships' House. Therefore, I beg leave to withdraw the amendment.
moved Amendment No. 17:
Page 18, line 10, after "do" insert "—
(a) by the inquiry panel, or
My Lords, on behalf of my noble and learned friend Lord Falconer, I move a minor and technical amendment. It will ensure that offences of distorting or suppressing evidence do not cover actions that are authorised by the inquiry panel. I am grateful to the noble and learned Lord, Lord Saville, for bringing the issue to my attention. For example, the amendment will ensure that it will not be an offence to conduct forensic testing of a piece of evidence where the panel has so directed. I beg to move.
My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)
On Question, Bill passed, and sent to the Commons.