Inquiries Bill [HL]

– in the House of Lords at 11:45 am on 7th April 2005.

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Moved accordingly, and, on Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

[The page and line references are to Bill 70, the Bill as first printed for the Commons.]

:TITLE3:COMMONS AMENDMENT 1 Leave out Clause 7.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.

The other place supported a government amendment to remove Clause 7. As noble Lords will recall from previous deliberations in your Lordships' House, the Government did not support that clause for two key reasons. First, it would cause confusion about the lines of accountability between Parliament and the executive. Section 1 of the ministerial code makes it clear that Ministers remain in office only for so long as they retain the confidence of the Prime Minister. The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards. It is therefore for the Prime Minister to decide whether a specific allegation relating to ministerial misconduct under the ministerial code needs to be investigated and how any such investigation should be conducted. I remind noble Lords that that view was supported by the Committee on Standards in Public Life in its report in April 2003.

Secondly, there is concern about the scope for argument about what constitutes misconduct. The debate and amendments in another place highlighted the fact that there would be pressure to apply the clause to a far greater number of inquiries than, I believe, noble Lords intended when they proposed the amendment. As I indicated in our deliberations, it will not always be clear whether misconduct is an issue but, where there is uncertainty, Ministers could be pressed to seek resolutions. I believe that that would set precedents and increase pressure to follow the procedure for a wider range of inquiries.

We have debated the Bill in the context of the victims of events being inquired into, who might feel that the Government were ultimately to blame for what happened. Noble Lords will recall that I talked about the fact that, on a range of inquiries into events, ultimately people may believe that there is an issue for government. It may be an issue relating to funding, the recruitment or retention of individuals working on, for example, the inquiry conducted by the noble Lord, Lord Laming, into the tragic death of Victoria Climbié, or the issue of recruitment and retention of social services staff and so on.

Issues arose for government in many inquiries. It is possible that those who felt strongly that the Government's actions or inactions should be classed as misconduct would feel that they had been mistreated in some way if the clause were not put into action, even if we in this House had a rather narrower definition in mind, as I am sure was the intention of the noble Lord, Lord Kingsland, when he moved his original amendment. That would create false expectations, and—we talked a great deal about this during the passage of the Bill—could damage the vital work that inquiries can do in restoring public confidence. That is the critical part of what an inquiry should achieve.

The Public Administration Select Committee report proposed parliamentary involvement for certain inquiries, but my honourable friend Anne Campbell—a member of that committee—made it clear in Standing Committee in another place that that recommendation was not aimed at inquiries into ministerial misconduct. The committee felt that allegations of misconduct, such as breaches of the ministerial code, should be dealt with by another route entirely.

I pay tribute to the work of the committee. It conducted a thorough and wide-ranging investigation and produced a report of enormous value to your Lordships' House and the Government. I am sure that it will be a source of guidance and best practice for many inquiries in the future.

Yesterday the committee chairman, my honourable friend Dr Tony Wright, spoke eloquently in another place about the value of this Bill. He also made it clear that his concerns now were not about this Bill. They were about a category of inquiries which he described as,

"not caught by the Bill", inquiries which Parliament itself might want to take a greater role in carrying out. He welcomed the commitment given by the Government, in their response to the PASC report and again yesterday, to be supportive of any work that Parliament wants to do on developing its own mechanisms for inquiry. I am happy to repeat that commitment in your Lordships' House today.

It is also important to keep in mind the amendments made in this House to increase parliamentary involvement in inquiries set up by Ministers. For example, if there were an inquiry in which it were felt helpful to reinforce the benefit of a statement to Parliament, for which Clause 6 already provides, by asking Parliament to approve formally, by resolution, the terms of the statement, Ministers could put down resolutions to that effect, without any need for that to be spelt out in this Bill. Clause 7, therefore, does not create a power that Ministers do not already have.

I should like to remind noble Lords what my honourable friend Tony Wright said about the benefits of the Bill. He said it is to be welcomed as a strengthening of the inquiry tradition as a whole. Ultimately, the fundamental point of the Bill is not about Parliament or Ministers, but is about giving more inquiries the full statutory powers that they need to gather all the evidence and get to the truth.

This Bill has no "bouncebackability", to quote a term from a Sky sports channel. Noble Lords will know that this is our last opportunity to consider it. During the passage of the Bill—I say this personally—I have listened very carefully to all the concerns raised in your Lordships' House and I have amended the Bill as appropriate, whether from the point of view of the noble and learned Lord, Lord Howe of Aberavon, the noble Lord, Lord Laming, the noble Lord, Lord Goodhart, or indeed other noble Lords who have raised points of concern. It would be a shame if the Bill did not reach the statute book. I shall be very clear with noble Lords: if the amendments tabled by the noble Lord, Lord Kingsland, are carried today, the Bill will not reach the statute book. The Bill cannot come back.

I believe it is a good Bill. I support what my honourable friend Tony Wright said, and I endorse the comments made that we shall seek to work with Parliament to address the concerns of the Public Administration Select Committee and to deal with those issues. I also endorse what he said, that such a matter is not for this Bill. On that basis, I hope noble Lords will feel that I have listened sufficiently and will, therefore, feel able to accept the Commons amendment.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Ashton of Upholland.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

rose to move, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, the issues that underlie both amendments that we have tabled today have been thoroughly debated on three previous occasions, at Second Reading, in Committee and on Report. Therefore, I need only indicate, briefly, to your Lordships the content of the amendments and rehearse, equally cursorily, the arguments in support of them.

The two amendments are, in one sense, linked because both of them seek to constrain the power of the Royal Prerogative with respect to inquiries. Amendment No. 1A deals with a special category of public inquiries—inquiries which involve ministerial misdemeanours. The amendment requires Parliament to determine the terms of reference and the composition of the inquiry committee and, in that way, constrains the independence of the Prime Minister to do so.

In circumstances where the Prime Minister is inclined to select a judge to chair a public inquiry, the second amendment, Amendment No. 2A, will require him to obtain the permission of the Lord Chief Justice. In other words, the two other arms of the constitution—Parliament with respect to ministerial demeanours and the judges with respect to a proposal that a judge should chair a committee—are both engaged, in my submission, in a constitutionally appropriate fashion.

The Government are opposed to both of those constraints. That does not surprise me in the least. It is wholly consistent with the approach of the Government to the balance of power between the executive arm of the constitution, on the one hand, and the judicial and parliamentary arm of the constitution, on the other, ever since they came to power in 1997. It is clear that the Government wish to make the executive arm the overwhelmingly predominant arm of the constitution.

With respect to both of the issues raised by the Commons amendments, I at least have to give the noble Baroness high marks for consistency. What the Government are seeking to do is wholly consistent with what they sought successfully to do the other day by removing the long-standing constitutional convention that the Lord Chancellor ought to be a lawyer and a Lord. Moreover, on more than one occasion I have heard from the government Benches certain straws in the wind that, in the extremely unlikely event that the Labour Party wins the next election, there may well be early initiatives to reduce, not only your Lordships' scrutiny powers, but also the delaying powers of your Lordships' House. Behind our two amendments, therefore, lie big constitutional issues.

Turning to Amendment No. 1A, the Bill is defective in that it says absolutely nothing whatever about the establishment and operation of inquiries where ministerial demeanours are concerned. I have been brought up to believe that when a Minister has potentially acted unconstitutionally, that Minister is responsible to Parliament. I was surprised to hear the noble Baroness tell your Lordships' House that, in fact, that doctrine no longer appears to be the case. The noble Baroness took us to the text of a particular government document and quoted it, saying that Ministers remain in office only for as long as the Prime Minister allows them to do so. My understanding is that Ministers remain in office as long as Parliament permits them to do so.

I can quite understand why the noble Baroness may have failed to observe that point. Underneath the pile of rubble that the Government have unloaded on our constitution since 1997, it is difficult to discern the doctrine of ministerial responsibility, but it is the doctrine of ministerial responsibility that is right behind our first amendment. At both Second Reading and in Committee we advanced the view that, where ministerial misconduct is concerned, the committee investigating that misconduct should, first, be established by Parliament and, secondly, be composed, either entirely or predominantly, of Members from another place and your Lordships' House.

In between the Committee and Report stages, as the noble Baroness quite rightly indicated, the Public Administration Select Committee of another place published a report entitled Government by Inquiry. Those of us who had been advancing those views from these Benches were delighted to read that our views were wholly endorsed by that committee's report. I refer your Lordships to the concluding passages. I quoted them on Report and I make no apologies for quoting them again. The committee said:

"We recommend that in future inquiries into the conduct and actions of government should exercise their authority through the legitimacy of Parliament in the form of a Parliamentary Commission of Inquiry composed of parliamentarians and others, rather than by the exercise of the prerogative power of the Executive".

What better endorsement could the views of the Opposition have; especially when the overwhelming membership of that committee comes from the noble Baroness's party?

The Public Administration Select Committee appended to its report the text of an amendment that we and the Liberal Democrats jointly supported on Report. Between Report and Third Reading, as a result of discussions that I had with the noble Lord, Lord Goodhart, we amended the text of that document in order to be more kindly to the Government, and voted on the text at Third Reading.

The noble Baroness has expressed great concern about the amendment; but the fact is that as a result of the approach taken by the noble Lord, Lord Goodhart, and myself, the provision is not mandatory on the Government, it is only directory. The word is "may", not "must". So I remain totally unconvinced that the arguments advanced against us this morning by the noble Baroness should carry any weight.

Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Lord Kingsland.)

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities 12:00 pm, 7th April 2005

My Lords, despite criticisms from some sources outside Parliament, I believe that this is a good Bill and one which is worth passing. The criticisms have been based largely on misunderstandings of both the present law and practice and the effect that the Bill would have.

The Bill could be even better. As your Lordships know, we and the Conservatives together inserted two amendments into the Bill in your Lordships' House which have been removed in the other place. One of those, which we will come to later, required the consent of, and not just a consultation with, the relevant senior judge to appoint a judge to an inquiry panel. The other amendment—the one that appeared in Clause 7, which was removed in the other place—created a special parliamentary procedure for inquiries involving the alleged misconduct of Ministers.

The amendment removed on Report was derived from the report of the Public Administration Select Committee on inquiries which was published during the passage of the Bill. It suggested that inquiries under the Bill involving the misconduct of Ministers should be commenced by a parliamentary resolution.

In our view, while the matter is certainly well worth considering, there were some limitations in that proposal, both in the original amendment proposed by the Public Administration Select Committee and in the later version of that amendment which appeared in Clause 7. Perhaps I should say at this point that we do not agree, and never have agreed, with the original suggestion of the noble Lord, Lord Kingsland, that it would be appropriate for an inquiry to be made up only or mainly of parliamentarians. That would be a recipe for total failure of the system.

I accept that if it is compulsory to use parliamentary procedure, there would in particular be real problems in deciding before an inquiry started whether it involved allegations of misconduct by a Minister, and therefore of deciding whether the appropriate course should be a parliamentary or non-parliamentary procedure in setting up the inquiry. However, under the final version the Government cannot be forced to direct an inquiry under the Bill. It is optional for them to use the parliamentary procedure. Therefore, there is in effect little reason for the Government to make use of it.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I should perhaps make it clear that yesterday, during the Bill's passage in another place, representatives from Her Majesty's Opposition made it absolutely clear that their intention was that the procedure should be used in the vast majority of cases. Indeed, they moved amendments to make it compulsory.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

That is the case, my Lords, but what we are considering here is the restoration of Clause 7 to the Bill.

In any event, in whichever form the amendment appears, the Government cannot be forced to direct an inquiry under the Bill. They could either set up an inquiry outside the Bill or have no inquiry at all. It is a fairly general view, which I share, that a better course would probably have been for the Select Committees in the House of Commons to have a power to conduct inquiries and to be prepared to do so. But that would have involved changes of procedure, in particular the employment of counsel to cross-examine witnesses, rather than having them cross-examined by members of the committee, which the chairmen of the Select Committees in the other place seem unwilling to accept. So that particular way of moving forward is not open.

In a speech made yesterday in the House of Commons, Tony Wright, the chairman of the Public Administration Committee, recognised the existence of these problems and therefore did not seek to press his amendment. I think that that is an important consideration to take into account.

As I indicated, while we would support in principle the idea that there should be greater parliamentary involvement, we are not convinced that the amendment which now appears in Clause 7 provides a workable solution to the problem of getting Parliament more closely involved in the inquiry procedure.

In normal circumstances it is likely that we would have supported Clause 7 for one round of ping-pong though no further; there is, as the Minister pointed out, no time for that now. We are reluctant to vote against an amendment that we supported earlier, but I accept that it would not be appropriate now to continue to support Clause 7. It is therefore our intention not to vote in support of the amendment moved by the noble Lord, Lord Kingsland.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I have considerable respect for the noble Lord, Lord Kingsland. With that respect, I must say that he has been uncharacteristically unfair in describing the constitutional reforms carried out since 1997 as "a pile of rubble" and suggesting that they have diminished ministerial responsibility. In fact, without going into it in any detail, the Human Rights Act, indirectly the Freedom of Information Act, and the Constitutional Reform Bill have all increased the accountability of Ministers to the courts, to Parliament and to the public. So I do not accept the criticism that has been made, especially since we on these Benches have welcomed all those reforms.

The noble Lord has indicated correctly that his amendment would restrict the Royal prerogative. I respectfully remind him that when I introduced my Executive Powers and Civil Service Bill a few months ago, I received absolutely no support whatever from the Conservative Opposition in seeking to regularise the prerogative and place it under parliamentary control.

I, like my noble friend, am sympathetic to this amendment and to the other to which we will come. But I am convinced that this is a very well-designed Bill. I would not like to go back and be stuck with the 1921 Act, which would be the consequence if the Bill were now to be blocked on the basis of either of the amendments being pursued. For that reason I very much hope that the Bill will now go through on oiled castors.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I intervene only shortly because on the next amendment I have a little more to say. I totally support the desire of the noble Lord, Lord Kingsland, that Parliament should be more involved in this subject than it is currently. As the involvement is purely optional, I see absolutely no reason why it is being resisted. I am bound to say that I find the change in the attitude of the Liberal Democrats more than a little disappointing.

Photo of Lord Laming Lord Laming Crossbench

My Lords, I begin by saying how much I admire the improvements that your Lordships have made to this timely and important Bill. I pay tribute not only to the Minister, who has listened carefully to your Lordships, but to the other Members of the House who have played such an important and careful part at each stage of our deliberations on the Bill. It is to the credit of the House that the Bill has emerged as such a good and helpful piece of legislation.

When this amendment was debated earlier, I spoke against it. Clearly, I was not convincing. Indeed, the noble Lord, Lord Kingsland, chided me—extremely gently and kindly. He said that I had said that Parliament should not hold the Government to account. Because I have such regard for the noble Lord, I reflected not only on what I had said but on his response. I realised that, not for the first time, I had failed to express myself adequately in your Lordships' House. I hope that this time I may do a little better.

I have absolutely no doubt that Parliament has a key responsibility in holding the Government to account for their actions. Indeed, I venture to suggest that some of us wish that Parliament would do that more often, more robustly and to greater effect. But the machinery to do that already exists. It may need to be strengthened in certain aspects, but that is not a matter for this Bill.

My concern about the amendment is that it is not at all central to the Bill. We should not lose sight of the fact that the Bill is about setting up inquiries into matters such as the Ladbroke Grove rail disaster, Alder Hey, Shipman, Bristol Royal Infirmary and, dare I say it, Victoria Climbié. Important though the issue is, it needs to be addressed elsewhere. What the noble Lord, Lord Kingsland, said this morning convinces me even more of that.

I hope that there will be no prospect of this important Bill being lost today. That would be something of a tragedy. One thing on which most if not all of us agree is that we need to remove the 1921 Act and replace it with something more relevant to today's needs. I very much hope that the amendment will not be pressed but, if it is, I hope that the House will vote against it.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I am most grateful to all noble Lords who have spoken. I am disappointed that the Liberal Democrats will abstain and not support us. The noble Lord, Lord Goodhart, made clear his reasons for taking that view. I am also extremely grateful to the noble Lord, Lord Laming, for his remarks. It was kind of him to describe my response to what he said on Report as gentle chiding. I certainly did not intend to go beyond that. It is nice to know that, just occasionally, what one says is understood in the terms that it was meant; that is not always the case when one speaks from the Dispatch Box.

To me—and, indeed, to the Opposition—it seems strange for a Bill to be advanced by the Government to deal with public inquiries on all matters excepting those that matter most: the conduct of Ministers responsible to Parliament.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I interrupt the noble Lord only because I am sure that he would agree that the tragedies mentioned by the noble Lord, Lord Laming, are the events that matter most. I take the noble Lord's point, but I should not want us to lost sight of what the Bill is intended to do concerning such tragedies.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I certainly do not lose sight of that; but there are already mechanisms to deal with those matters, and they will continue to do so as long as the law is not changed. I believe that the manner in which Ministers are subject to inquiries should be controlled by Parliament. However, we have not even gone as far as requiring that in our amendment. We have said only that Parliament may—not "must" but "may"—establish the terms of reference and composition of those committees. In those circumstances, I remain wholly unconvinced that the Government have a legitimate argument against the amendment, and I beg to test the opinion of the House.

On Question, Whether the said amendment (No. 1A) shall be agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 142.

Division number 1 Private Parking: Ports and Trading Estates — Inquiries Bill [HL]

Aye: 87 Members of the House of Lords

No: 140 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

2 Clause 11, page 4, line 31, leave out "obtain the consent to that appointment of" and insert "first consult"

3 Page 4, line 33, leave out "whose consent must be obtained" and insert "to be consulted"

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 12:28 pm, 7th April 2005

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 2 and 3.

The Government continue to support the amendments and to believe that it is correct that the Lord Chief Justice or a relevant colleague must be consulted before the appointment of a judge to an inquiry panel, but that they should not be given a right of veto. The formal requirement for consultation for which the clause provides is an onerous one. It requires the Minister to listen carefully to any objections that the Lord Chief Justice may have, such as on the selection of an individual judge, the arrangements under which the judge would work, the impact on judicial workload or even the desirability of using a judge at all for that particular inquiry. The clause requires the Minister to contemplate each of those considerations and to make every effort to meet them.

The clause recognises the Government's belief that it should be for the individual judge to say "yes" or "no" to an appointment and not for the Lord Chief Justice or the Minister. The clause accordingly upholds judicial independence. There is no suggestion that either the Government or the Lord Chief Justice could order an individual judge to carry out an inquiry. So, under the amendments of another place, it remains a matter for the individual judge to decide.

The clause does not mean that there will be a presumption that a judge will always chair an inquiry and, as we have discussed during the passage of the Bill, we envisage that many future inquiries will have non-judicial chairmen. It is also worth remembering that in practice there has always been close contact during the process of consultation and that there always will be. The noble and learned Lord, Lord Woolf, made that clear in December when he told the Public Administration Select Committee that,

"In practice, there is never any difficulty over this. My own belief is that if the Lord Chancellor of the day found the Chief Justice was unhappy about a judge taking part in an inquiry, the Lord Chancellor would be hugely influenced by this and would not, I would have thought almost inevitably, pursue his request".

It is the Government's view, however, that ultimately the Minister must be able to ensure that the final decision on whether to appoint a judge will be in the public interest. For example, we may be considering enormously serious events that create an overwhelming public interest in appointing a judge to investigate that might outweigh all other factors. In the unlikely event that a Minister pursued the appointment of a judge and the judge accepted the appointment despite the opposition of the Lord Chief Justice or the appropriate colleague, that would no doubt be in the public domain and the Minister would have to account for it.

The amendment made by another place indicates that, although we accept that it is very important to emphasise the critical nature of the consultation with the Lord Chief Justice, the role of selecting the chairman of an inquiry must rest with the government of the day. It is they who must take responsibility and they who need to consider the seriousness of the event in order to make a decision, but the ultimate choice whether to accept such an appointment rests with the individual judge, thereby preserving judicial independence. I beg to move.

Moved, That the House do agree with the Commons in their Amendments Nos. 2 and 3.—(Baroness Ashton of Upholland.)

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords 12:30 pm, 7th April 2005

rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendments Nos. 2 and 3, leave out "agree" and insert "disagree".

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

I have already discussed the constitutional background to this second group of amendments. Of course, I agree with the Minister that there will be many inquiries that ought to be chaired by a judge. However, it can equally be said that many inquiries are held that emphatically ought not to be chaired by a judge. Generally speaking, those are inquiries that raise predominantly political issues where a judge has to make a decision about the action of a politician in his or her ministerial role.

It is almost impossible for a judge to walk the tightrope between, on the one hand, being too soft on the Minister and therefore attracting the vilification of the press; and, on the other hand, being too hard on the Minister and thereby attracting the criticism that an unelected individual, lacking electoral legitimacy, should not pass judgment on those who are elected. I do not need to mention any names in support of that supposition because they are obvious to all noble Lords.

There is also a view, despite the reaction of the Government to this matter in another place, that the much-heralded doctrine of the separation of powers ought, generally speaking, to exclude judges from the political arena. After all, as a consequence of the Constitutional Reform Act 2005, judges sitting in the Appellate Committee of your Lordships' House are soon to be removed; and future Lord Chief Justices, Masters of the Rolls and Lord Presidents will no longer sit in your Lordships' House—all because it is feared that judges will be contaminated by the political process. In my submission, that principle applies a fortiori to judges chairing inquiries that have a political flavour.

In the course of considering the issue, the Public Administration Select Committee, to which I referred earlier in our proceedings, had occasion to visit the United States. In talking to judges there, it learnt that American judges were astonished that British judges were used to chair public inquiries. This point is made in paragraph 30 of the committee's report:

"The legitimacy of the judicial branch ultimately depends upon a reputation of impartiality and non-partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action".

Later in the report, at paragraph 58, the committee concludes that,

"We agree with Lord Woolf's concerns over the current provisions in the Inquiries Bill and recommend that decisions about the appointment of judges to undertake inquiries should be taken co-equally by the Government and the Lord Chief Justice or senior Law Lord".

Giving that responsibility to the Lord Chief Justice guarantees that judges will not be appointed, in appropriate cases, to chair committees of inquiry. That is the basis for the amendments that we have tabled today. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendments Nos. 2 and 3, leave out "agree" and insert "disagree".—(Lord Kingsland.)

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, the second group of amendments concerns whether the relevant senior judge must consent or merely be consulted before a judge, under the auspices of that senior judge, is to be appointed as a member of the panel. The term "senior judge" means in the case of a judge of the Supreme Court, the Chief Justice or at present the senior Law Lord. In the case of a judge of the courts of England and Wales, it means the Lord Chief Justice, with corresponding provisions for Scotland and Northern Ireland, where the consent required is that of the Lord President or the Lord Chief Justice of Northern Ireland.

The amendment was moved by us in your Lordships' House and supported by the Conservatives. The moving force behind the amendment was the view of the Lord Chief Justice, the noble and learned Lord, Lord Woolf, that, as the person responsible for judicial deployment in the courts of England and Wales, he should have a veto over the removal of judges from their normal duties. We support and sympathise with that view. However, I also understand that the Lord Chief Justice is concerned, as are we, that the Bill should go through with or without a clause requiring the consent of the senior judge.

As the Minister pointed out, it is unlikely that the Lord Chancellor would proceed with a request to appoint a particular judge over the objection of the relevant senior judge. It is also true that any judges approached with a view to their appointment to the panel of an inquiry would make themselves aware of the views of the relevant senior judge and would be very unlikely to accept the appointment contrary to the wishes of that senior judge. In those circumstances, it seems that in practice the amendment would add little to what will be the case. Nor do I think that it has the kind of major constitutional implications suggested by the noble Lord, Lord Kingsland.

In this case, being aware of the obvious pressures of dealing with the matter at this very late stage of the Parliament, and recognising that the Bill is worthy of going on to the statute book, we again do not wish to act contrary to what we understand are the views of the Lord Chief Justice on this issue. Therefore, as we did on the previous occasion, we will abstain if a Division is called—or, at any rate, noble Lords on this Front Bench will abstain.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, this amendment of the House of Commons has a number of bizarre features. The first, of course, is that it has been twice moved—on Report and at Third Reading—by the Liberal Democrats, and now they have changed their mind. I shall deal with the reason for that change later. Secondly, as a result of the recent and narrow defeat of the proposals of the Opposition in regard to the Lord Chancellor being a Member of this House, a senior lawyer and a senior member of the Cabinet, any Tom, Dick or Harry—I suppose I should add "or David or Charlie"—could end up being the Lord Chancellor. That gives one even more reason for requiring the Lord Chief Justice to have an equal say with the new Lord Chancellor.

The third feature, which has never yet been answered by the Government, is that the much vaunted concordat—which was looked upon, I remember, by the noble Earl, Lord Ferrers, with a certain amount of cynicism—makes it clear that deployment is a matter for the Lord Chief Justice; on no stretch of the imagination could this be other than an exercise in deployment. A judge is to be taken out of the High Court, the Court of Appeal or your Lordships' Appellate Committee and deployed elsewhere. That is in no way different from a judge being taken out of London and being assigned to a circuit for an extra two months, or so.

This is part of what is provided for in the concordat. It makes depressing reading to know that there has been no reply from the Government to something as obvious as the clash between the agreement on the concordat and what is now proposed, even though the point was made both on Report and at Third Reading.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 12:45 pm, 7th April 2005

My Lords, perhaps I may help the noble and learned Lord, Lord Ackner. Inquiries were not discussed as part of the concordat. The Lord Chief Justice made that perfectly clear in his evidence to the Public Administration Select Committee.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, as I understand it, the concordat was not agreed at the time when the Select Committee to which reference has been made was discussing the matter; it was overlooked. That was said in answer by the Lord Chief Justice when he gave oral evidence. It was incorporated subsequently.

Let me turn to what the Lord Chief Justice said in this regard. He stated on Report:

"I see the issue as having two limbs: one is now an issue—for me, at any rate—of principle. I know that principles are unwieldy and dangerous steeds to mount. However, we have recently agreed the concordat, thanks to the consensus that was reached between the Secretary of State for Constitutional Affairs—the noble and learned Lord the Lord Chancellor—and myself. It appears that what is now being resisted is inconsistent with the concordat. For good reason, the concordat, which is now reflected in the Constitutional Reform Bill, states:

'The Lord Chief Justice will be responsible for the posting and roles of individual judges, within the framework set by the Secretary of State'.

It seems that deployment of a judge as an inspector of an inquiry falls readily within those words.

This view was supported by the Public Administration Committee in the other place which, as your Lordships know"— and this was quoted by the noble Lord, Lord Kingsland

"concluded that the appointment of a judge to a public inquiry should be a decision taken jointly by the Lord Chancellor and the Lord Chief Justice. It is also, I suggest, a matter of plain English. If a judge is being deployed to conduct an inquiry, that is deployment of that judge, so the concordat applies. It could be said that the concordat deals with deployment in the courts, but I would not so understand it. That I am right in taking that view is reflected in paragraph 47 of the concordat which states that the appointment of judges to committees, boards or similar bodies is the responsibility of the Lord Chief Justice".—[Hansard, 7/2/05; cols. 646 and 647.]

With great respect to the noble Baroness, I think she has overlooked the timing in this matter. The committee's report came before the Report stage of the Inquiries Bill, and that is why the omission had to be repaired. I again repeat—perhaps I will get an answer this time—what is the explanation for the suggestion that deployment, which is a function of the Lord Chief Justice, does not equally apply to taking a judge out of the judicial strength and putting him in charge of an inquiry?

That is one puzzling matter. The next matter to which I wish to refer is that the only explanation which has been given so far by the Government is, "Ah, you need not worry about this; it is a matter for the individual judge to decide". The attitude is that the Chief Justice need not worry because, if it is known by the judge who has been approached that the Chief Justice is against it, he will automatically decline to act. That I consider to be a very superficial answer. If it will have the result that the Government suggest, why not allow the Chief Justice to signify his consent or absence of consent and make that the determining factor? What is the point of hiding behind the individual judge?

Moreover, it is wrong to be confident that the individual judge, despite knowing the attitude of the Chief Justice, will always refuse to act. In the debate to which I have drawn attention, it was said by the noble and learned Lord, Lord Cullen, the Lord President of the Court of Session, that some judges looked on the approach to them as being a requirement of their serving a public duty obligation and might well take the view that in those circumstances they really ought to take part.

However, there may be other reasons. The judge may be bored stiff with the work that he is doing, sitting, for instance, in the Old Bailey every day with an unrelenting diet of crime, or being a member of the Family Division, with nothing else but a diet of money and matters concerning children. The relief of two or three months spent doing something unusual in the public domain and—the frailty of human beings being what it is—with the spotlight of publicity on him may well mind him to say, "I hear what the Chief Justice says, but I would like to accept the offer".

The Chief Justice is in a far better position to assess whether the appointment should be one for a judge. He has the administrative task of deciding whether he can spare someone. It could be a specialist, a commercial judge or one of the judges dealing with administrative law—again a specialist—overworked and overtaxed. I think that my noble and learned friend Lord Donaldson mentioned that there is or was provision that a judge of the commercial court could, subject to the agreement of the Lord Chief Justice, sit as an arbitrator. I do not believe that that has ever happened, for the simple reason that there is and was such a demand on commercial judges. It is not right, as a matter of ordinary sound sense, to take the view that the judge would be bound to decline, but, if that is the general view, it justifies giving the veto to the Lord Chief Justice.

I come to the almost neurotic—if I may be allowed to use that word—concern that the whole Bill will be dropped. I believe that that is a bluff. There is so little substance in the amendment proposed by the other place that I cannot believe that, with the interests of the public at heart, the Government would, for something of this kind—they say that it will make no difference anyhow, because the Chief Justice's views will predominate—drop a Bill that provides for completely different architecture with regard to the courts; for the old office of Lord Chancellor to be markedly changed; and for a Supreme Court and the dissociation of the judges—the Lords of Appeal in Ordinary—from this House, because they do not get quite the reaction they want from this House. We should be a great deal bolder and see what happens if we stick to what the Liberal Democrats urged us twice to do, on which the House made clear its views on two separate occasions, voting on it on Third Reading.

I strongly support the amendment moved by the noble Lord, Lord Kingsland.

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench

My Lords, the House will be glad to know that I can express my views rather more succinctly than my noble and learned friend.

I turn to the point made by the noble Lord, Lord Kingsland. Throughout the tenure of office of the present Government, there has been a consistent pattern of trying to weaken the independence of the judiciary. The famous ouster clause was the high watermark, but there have been other efforts. This is, in a sense, in the same category.

I agree with my noble and learned friend that it is difficult to reconcile the duty of the Chief Justice or whoever is appropriate to concern himself with the deployment of judges with saying that all he can do about the appointment of a judge to a panel of inquiry is express his views. However, I disagree with my noble and learned friend when he suggests that judges might happily accept appointment, despite the views of the Chief Justice, because they were bored or found that their ordinary diet of work was thoroughly unsatisfying, still less because they wanted a little oxygen of publicity to keep them going. People who do that are not normally—I could almost say ever—appointed to the Bench.

Noble Lords:

Oh!

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench

Leaving that to one side, my Lords, I stress that in relation to judging, judges are totally independent of the Chief Justice or any other judge. Early in my judicial career, I wanted advice from the Chief Justice about a bail case. I went to see him, and he gave me unequivocal advice about whether bail should be granted. The circumstances of the case, when I eventually heard it, were very peculiar, and I granted bail, contrary to the Chief Justice's policy and advice. I went back to him and said, "I am terribly sorry, but I thought that on the facts of this case I had to grant bail even though it is contrary to all policy and precedent". His answer was, "Don't think about it for a moment, John. That's what you're paid for". That illustrates the independence of the judiciary on individual cases.

The senior judiciary are members of a collegiate body. If the senior members of that body thought and said that there were good policy reasons for not accepting the appointment, I am convinced that the appointment would not be accepted. To that extent, it makes little difference, except that it is part and parcel of taking independence away from the judiciary.

My last point does not arise directly on this amendment, but the noble Lord, Lord Kingsland, mentioned it. He said that there was talk on the Government side that in the next Parliament, if they are in a position to do so, they will attempt to reduce the delaying power of this House. I am sure that he is right about that.

I wish to draw the attention of the House and perhaps a wider public to the fact that a by-product of the Hunting Act dispute was that the Court of Appeal gave judgment that the Parliament Act is not available to alter relations between the two Houses of Parliament. That is vital. I know that those concerned with hunting felt very strongly about it. Without resorting to the Parliament Act, the Government could have got the legislation through by today by putting the Bill before the Commons in this, the third Session. I am delighted that the Hunting Act was taken to the courts because it will enable them, subject to what this House in its judicial capacity may say on a further appeal, to say flatly that you cannot use the Parliament Act to get rid of the House of Lords.

Photo of Lord Ackner Lord Ackner Crossbench 1:00 pm, 7th April 2005

My Lords, before the noble and learned Lord sits down, has he read the remarks of the noble and learned Lord, Lord Cullen, the President of the Court of Sessions, as reported in Hansard, at Report stage of the Inquiries Bill? He said:

"This matter should be in the hands of the senior judge; it should not be left to the judge who is the target of the Minister's attentions. From my own experience as an inquiry chairman, I think that most judges would feel very diffident about turning down an invitation to take an appointment which was seen as being for the public good".—[Hansard, 7/2/05; col. 646.]

Photo of Lord Evans of Temple Guiting Lord Evans of Temple Guiting Government Whip, Government Whip

My Lords, I am very sorry to have to remind noble and learned Lords, but we are at a stage where you are allowed to speak once in a debate.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, the noble and learned Lord, Lord Ackner, once described somebody as a jellyfish. I do not regard the judges of this country as jellyfish, and the idea that judges would behave in the way that has been suggested by two very distinguished former Law Lords is, with great respect, not my view of Her Majesty's judges. It is inconceivable that any judge worth his or her salt would accept an invitation to serve at an inquiry of the kind contemplated by this Bill without consulting the Lord Chief Justice. No Minister would be so foolish as to invite any judge to serve on an inquiry without first ensuring that he or she had the consent of the Lord Chief Justice. In practice, a constitutional convention, if one likes, will develop under this Bill, and has already developed, whereby any Minister who wishes a judge to head an inquiry will in practice not only consult the Lord Chief Justice but obtain his consent.

We have not changed our minds. We agree with almost everything said by those in favour of the amendment that we first fashioned. Above all, we agree with the views of the Lord Chief Justice, the noble and learned Lord, Lord Woolf, who, as I understand it, has not changed his mind on the issue of principle. The problem, which the noble and learned Lord, Lord Ackner, describes as "neurotic", is not neurotic at all. We are concerned at the moment with what a great Conservative Home Secretary, RAB Butler, described as the art of the possible. I regret that the noble and learned Lord the Lord Chancellor takes a very firm position on this matter and will not budge. Although the noble and learned Lord, Lord Ackner, invites us to gamble and to call what he considers to be the noble and learned Lord the Lord Chancellor's bluff, we are not prepared to gamble with a very important Bill in that way.

I remind the House that, like the Cross Benches, the Liberal Democrats are in an unusual position in this House. We and the Cross Benches effectively control the balance of power in some key issues. Without wishing to sound pompous about it, the way in which we exercise that responsibility is rather important. We do not gamble; we must be sure that if a Bill is well designed it will pass. We are in an uncomfortable position because we wholly agree with our own amendment and wish that the noble and learned Lord the Lord Chancellor had changed his mind.

The Lord Chief Justice, to whom I have spoken—I am sure that I am at liberty to say this—is very disappointed that this amendment will not be agreed to. But he is a statesman, a wise person who combines principle with pragmatism, recognises the art of the possible and has made it clear that he would not wish to block this Bill by taking an obstinate position on the issue.

If we thought that it would weaken judicial independence if the amendment were not agreed to, we would continue with our original position. But as my noble friend Lord Goodhart and the Minister have both indicated, it will not weaken judicial independence in any way. It will make certain that a wise Minister will act as I have said. If an unwise Minister is foolish enough not to consult and get the consent of the Lord Chief Justice, the Lord Chief Justice and the judges will make sure that that will be made public, it will be a scandal and the Minister will be accountable to Parliament.

For those reasons, I very much hope that the House will reject the position being taken now, even though it was our original position. There is no change of mind on our part. We deplore the fact that our original position is not acceptable to the Government, but there is a greater purpose: to get the Bill on to the statute book.

Photo of Lord Laming Lord Laming Crossbench

My Lords, as ever, the noble Lord, Lord Kingsland, has moved an amendment with great skill and thought. It would be foolish to discount the points that he has made. As, yet again, the only non-lawyer to address these issues—

Photo of Lord Laming Lord Laming Crossbench

Sorry, my Lords, apart from the Minister, who is in a central position—I took that as granted. I hope that it will not be thought presumptuous of me if I say that I agree with the noble Lord, Lord Kingsland, that members of the judiciary should take seriously the thoughts of the American Bar Association about judges getting too closely involved in matters that are overtly party political. That is a serious issue.

It was because of my concern, for what it is worth, about the independence of the judiciary, and in particular the position of the Lord Chief Justice, that I supported the earlier Bill that went through your Lordships' House. It strengthens considerably the independence of the judiciary and the position of the Lord Chief Justice. But history shows that Lord Chief Justices are made of sterner stuff than we sometimes seem to give them credit. Nobody becomes a Lord Chief Justice unless he—and, I hope, some time she—has learnt to operate within the system tenaciously and robustly, and to have the dexterity to turn a problem into an opportunity. The position of the Lord Chief Justice in the Bill as it left the Commons, where he must be consulted about these matters, strikes the right note.

I have no doubt that, recognising that both the Lord Chancellor and the Lord Chief Justice have common cause on many of these issues about the effectiveness and resources of the courts, the Lord Chief Justice will find himself or herself in a strong position in negotiating with the Lord Chancellor on such matters in the future. I also agree with those who say—the noble Lord, Lord Lester, in particular—that the Lord Chief Justice is likely to have such a standing with fellow judges that a quiet word will have considerable effect.

I do not agree that there is a great attraction in chairing an inquiry because of the opportunity that it gives for personal publicity. Indeed, anybody who felt that that was an attractive proposition has obviously not experienced the glare of personal publicity. I believe that, having myself had the benefit of a quiet and sound word in the ear—and sometimes, even in my humble position, having offered a quiet and sound word in the ear—I feel sure that these matters can be dealt with properly. I believe that the Bill, as it has left the Commons, strikes the right note and I hope that this amendment will either not be pressed, or, if it is, will be defeated.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I am most grateful to all noble Lords who have spoken on this amendment. The noble and learned Lord, Lord Ackner, reminded your Lordships' House that it had originally been advanced by the Liberal Democrat Benches. I was aware of that. I did not mention it in my opening speech because I did not want to embarrass the noble Lord, Lord Goodhart, by reminding him that that was the case. We have marched arm-in-arm on many issues in your Lordships' House in the past few years; and I understand that, sometimes, political factors intervene which mean that, at a late stage, political parties change their positions. The trouble is, however, that the advocacy of the noble Lord, Lord Goodhart, was so convincing that I have now acquired the zeal of the convert. I now feel more strongly about this issue than even the noble Lord, Lord Goodhart.

The constitutional issues have already been well discussed. My view is that the Government's enthusiasm for the separation of powers falters when they are faced with the fundamental issue—the balance of power between the executive and the judiciary. The Government were extremely enthusiastic about removing the noble and learned Law Lords from your Lordships' House because, frankly, it will not make a ha'p'orth of difference in terms of power whether they make their judgments in your Lordships' House or in a Supreme Court down the road. By contrast, it will make a great deal of difference as to whether or not the noble and learned Lord the Lord Chief Justice has a veto over the Prime Minister's choice of a judge to chair an inquiry.

Much of this debate has been about whether or not a particular judge ought to be able to say "yes" or "no" to an invitation or whether the noble and learned Lord the Lord Chancellor ought to be able to say "yes" or "no" on behalf of a particular judge. If that were the only issue I would feel less strongly than I do about this amendment; but that is not just the issue. The real issue is whether or not any judge, at all, should be chairing a particular inquiry for which the Prime Minister has to make a choice. That is the fundamental issue.

On that issue, I share the judgment of the noble Lord, Lord Laming, about the wisdom of our friends across the Atlantic. The views of the Justices of the Supreme Court of the United States on this matter are extremely sound. For that reason, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 2A) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 135.

Division number 2 Private Parking: Ports and Trading Estates — Inquiries Bill [HL]

Aye: 85 Members of the House of Lords

No: 133 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

4 Clause 54, page 26, line 9, leave out subsection (2)

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 1:24 pm, 7th April 2005

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. This is the privilege amendment. It is a technical amendment to remove the privilege amendment to Clause 54, which was inserted at Third Reading in this House. As this House cannot consider matters of money and charges on public funds, the amendment was inserted. Members in the other place passed at Second Reading a money resolution for the Bill and at Committee stage agreed that the amendment should be removed.

Moved, That the House do agree with the Commons in their Amendment No. 4.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.