The Bill is held back by a serious imbalance of powers between the commissioning Minister and the chairman of an inquiry. As we have already identified, the problem is prevalent throughout the Bill. It was debated eloquently and partially cured in the other place but, despite the valiant efforts of Lords Kingsland and Howe of Aberavon, who have considerably restricted the excessive powers entrusted to the Minister in the original incarnation of the Bill, the Minister still has extensive discretionary powers that will affect the independence, effectiveness and credibility of a public inquiry.

The other place has had a full and comprehensive debate on the topic. The arguments for reining back the potential for ministerial intervention in an inquiry are clear. They received widespread support from all, except the Government. The Committee will be aware that the many esteemed bodies that have studied the Bill have spoken out against the Government’s draconian powers to interfere in the process of an inquiry. I shall name a few: the Select Committee on Public Administration; the Joint Committee on Human Rights; the British Irish Rights Watch; the Committee on International Human Rights of the Association of the Bar of the City of New York—the consensus is overwhelming. Various reports underline the threat to the independence of an inquiry. The Minister’s overreaching powers would allow him to further the Government’s or his own interests to the detriment of the inquiry’s reason for being, which is to reach unbiased conclusions of the objective truth behind a set of circumstances.

It seems extraordinary how the Government continue to demand more ministerial intervention—a trend that was exemplified two weeks ago during discussion of the Prevention of Terrorism Bill. Each time, such action underlines how rarely and exceptionally—if ever—certain powers will be exercised. However, any such assurances would frankly not suffice. For so long as the powers remain, there will always be the potential for Ministers to exercise them or, indeed, abuse them. If the Minister is unlikely to use the powers, we must ask ourselves why the Government require them to be in place at all. We argue that such ministerial powers are not necessary under this Bill and will serve only to increase the Government’s desire to dominate.

It is clear and beyond debate that an inquiry must be independent. It is often forgotten that the inquiry must also be seen to be independent. As wisely noted by Lord Norton of Louth in the other place, that is

“crucial for the purpose of public confidence”.—[Official Report, House of Lords, 9 December 2004; Vol. 667, c. 1002.]

When the public are aware that a Minister can, at any time, intervene in the running of an inquiry—in its terms of reference, its panel, its funding, its longevity, its accessibility and its published findings—they will not fully trust that the conclusions of the report are unbiased, independent and true. Even if the Minister has not intervened, the underlying ability to do so will   affect the credibility of the inquiry. If the objectivity of the inquiry is doubted, the report that it produces could become worthless.

The effects of excessive ministerial intervention on the inquiry process go further, because the lack of credibility that undermines the conclusions reached by the inquiry could result in calls for a fresh inquiry into the same fact scenario. That could cause duplication of work and incur costs for the British taxpayer. As such, the efficiency of the whole inquiry process could be threatened by the unnecessary extent of the Minister’s powers. Let us learn from the Bloody Sunday inquiries, not repeat their mistakes at great distress to the individuals concerned and huge expense to the taxpayer.

On a more practical note, the Minister is often not well placed to make decisions relating to the inquiry. As he will not be present at the proceedings or know all the facts and minutiae of detail affecting the inquiry, he will often not be sufficiently informed to make judgments on how the inquiry will be run. By contrast, the chairman’s close involvement in all aspects of the inquiry will give him detailed knowledge of all necessary considerations. In most cases it is the man on the ground—the chairman—who should have the final word on, or at least conclusive input in, decisions that will affect the running of the inquiry. The Opposition have sought in this group of amendments to address the imbalance of power between the Minister and the chairman. Each amendment tackles a different embodiment of the same principle.

Amendment No. 3 would strengthen the role of the chairman when appointing members to the inquiry panel. In the original Bill, the Government gave the chairman no role at all in selecting the members of the panel: it was entirely at the Minister’s discretion. In Committee, the Lords agreed to an amendment that went some way to correct that imbalance of power, and in its present form clause 4 requires the Minister to consult the chairman before appointing a member to the panel. We welcome that change, but more needs to be done to strengthen the role of the chairman. By requiring that the Minister “seek the agreement” of the chairman, he will be under a positive obligation to reach consensus. That would ensure that the chairman has more, and the Minister less, influence when choosing who should serve on the inquiry panel.

The chairman should have more involvement in deciding who should make up his panel as he will have to work with his panel as a team and have confidence in each person to whom he entrusts duties. Also, each member will bring to the panel not only different expertise but different character, and all must interrelate and work well with the chairman. As such, it is important that the chairman has greater input on the identity of each member of the panel; consultation may not be enough.

As Lord Kingsland said:

“The chairman needs to have full confidence in the panel, and therefore it must follow that he should have the opportunity to express any reservations that he has about the other members who the Minister proposes to appoint.”

The other side of the coin—that the Minister should have less say in who serves on the panel—was also recognised by Lord Kingsland in the same speech. He said:

“this would give the public more confidence in the members of the panel who are conducting the inquiry.”—[Official Report, House of Lords, 18 January 2005; Vol. 668, c. GC228–9.]

Indeed, the extensive ministerial involvement in appointing the panel leaves the Government free to choose members who would be more likely to support their viewpoint or interests. Lord Howe told the Public Administration Committee that

“governments need to be protected from the temptation to rig the inquiry.”

With all the best intentions, temptation will always lie at the feet of the Minister. Although it is recognised that clause 10 goes some way to reducing the possibility of a Minister influencing the inquiry by means of the members whom he selects, the possibility of political influence still remains and the public may not feel sufficient reassurance that all has been done to ensure the independence of the panel.

Amendment No. 11 also relates to the composition of the inquiry panel. It addresses the draconian powers of the Minister on terminating the appointment of panel members. As stated by the Cross Bencher, Viscount Bledisloe, this allows members of the panel to

“be removed at the whim of the Minister if they seem to be taking a view not favourable to the Government interest in the inquiry”.

The ease with which the Minister could further the Government’s interests, to the detriment of the inquiry’s independence, could not be clearer.

Furthermore, the Minister’s power can be invoked under circumstances that leave much room for wide interpretation—for example, when a member of the panel fails to comply with any duty imposed on him by the Act or is guilty of misconduct that makes him unsuited to membership of the inquiry panel, or “for any other reason”. As noted by Lord Kingsland in the other place, that not only gives the Minister very wide powers, but

“a stark difference of view may arise between the Minister and the chairman of the panel as to whether the clause bites in any set of circumstances ... It is not unimaginable that the following may arise. The Minister may decide under subsection (3) to remove a member of the panel. He is obliged to consult the chairman before he does so. The chairman strongly disagrees with the Minister’s judgment. Nevertheless, having consulted the chairman, the Minister has completed his obligations to the chairman and may go on to dismiss the member. That could well put the chairman in an impossible position, especially if other members of the panel know that the chairman and the Minister were at loggerheads.”—[Official Report, House of Lords, 19 January 2005; Vol. 668, c. GC253–4.]

Although the explanatory notes state that the Government expect the power to be exercised only very rarely, the power, which could be open to abuse and restrict public confidence, remains. Not only may a member be removed for improper or illegitimate reasons, a chairman may resign when he is opposed to a Minister’s decision, which would involve more disruption and much additional cost to the inquiry process. It is essential that any decision to terminate the appointment of a panel member, except, of course, the chairman, is subject to the chairman’s agreement.

There is inconsistency in the Bill, and it is therefore important to refer briefly to what we will be discussing when considering amendment No. 9: the Minister’s excessive involvement in the composition of the inquiry panel in relation to further appointments to the panel once the inquiry has been set up. I want to highlight the inconsistency of the Government’s approach to the chairman’s intervention in all aspects of changing the composition of the inquiry panel.

In the Bill as drafted, the chairman must be consulted before appointing members of the panel at the outset of the inquiry or terminating their appointment before its conclusion. By contrast, the chairman has no involvement in selecting members to fill vacancies on the panel and yet must consent to any appointment that would increase the number on the panel unless the Minister had originally foreseen that the numbers would be increased, in which case the chairman need only be consulted.

The inconsistency of approach is inappropriate and unjustified. The Government have not explained why the degree of the chairman’s involvement should differ so dramatically in the different scenarios, and I hope that the Minister will be able to shed some light on that discrepancy. It has the look of a cut and paste job in the other place; the common theme of the various appointment processes has been lost in all the amendments. Having said that, I recognise that our amendments relating to changes in the panel’s composition are not entirely consistent—a deficiency that the Minister can deal with on Report.

Distinctions can be drawn between the various stages of changing the panel’s composition, especially as the Minister’s power to terminate an appointment is open to greater abuse than his power to appoint members from the outset. First, the discretion on appointing panel members is qualified by the requirements of impartiality in clause 10. By contrast, as I said, the Minister may remove panel members for any reason. Secondly, the Minister’s ability to gag panel members through their removal from the panel is more immediate and more certain to have an effect than the possibility of the member following governmental interests, whether or not at the Minister’s request. As such, we have made a distinction between seeking the chairman’s agreement for original appointments to the panel and securing his agreement when terminating appointments. The appropriate chairman involvement when appointing further members to the inquiry will no doubt be debated when we discuss amendment No. 9.

Amendment No. 4 would give the chairman an equal say in how the terms of reference of an inquiry should be framed. I remind hon. Members that the original Bill allowed for no chairman involvement whatever. Clause 5 received careful scrutiny in the other place, where Lord Goodhart for the Liberal Democrats secured amendments requiring consultation with the chairman. In Committee,   Lord Kingsland tabled an amendment requiring the chairman’s agreement, which remains the approach of the Conservative Opposition for two main reasons.

First, the Minister could use his blank cheque for fixing the terms of reference to ensure that the inquiry avoids any subject matter that could be embarrassing or prejudicial to the Government. For example, he could frame the terms of reference so narrowly and precisely that certain areas could become out of bounds or be ignored. That power would be reinforced by the Minister’s ability to withdraw funds if the inquiry strayed outside its terms of reference. That issue is addressed by our amendments Nos. 30 and 31, which, I assume, will be debated later. The Minister’s wide discretion in setting the terms of reference would limit public confidence in the inquiry and cast doubt on whether it had found all the relevant facts. That, in turn, would undermine public confidence in any conclusions reached, which would make the inquiry a wasted cost.

Secondly, the fact that the Minister has the final say on the extent of the inquiry could cause serious practical difficulties. Lord Goodhart stated:

“No chairman is likely to proceed with an inquiry unless he or she is happy with the terms of reference which they are asked to undertake.”—[Official Report, House of Lords, 18 January 2005; Vol. 668, c. 232]

In the context of the Public Administration Committee’s report, “Government by Inquiry”, several interviewees, including Sir Brian Bender, Lord Falconer and Sir Michael Bichard, underlined the need for the terms of reference to be finalised only with the agreement of the chairman. The report concluded that

“the chair of an inquiry should have the ability to negotiate the precise terms of reference before agreeing to undertake the inquiry.”

Furthermore, it suggested that one of the principles of good inquiry practice should be to

“have terms of reference which enjoy the widest possible consensus”.

In practice, the terms of reference will also be interpreted and applied by the chairman as the inquiry progresses. In order to ensure that that interpretation is not strained in order to further the inquiry’s goals, it is appropriate that the chairman be involved in setting the terms of reference from the outset. The amendment would also make his involvement in shaping the inquiry’s terms of reference more official, up front and transparent. We therefore strongly commend the amendment to the Committee.

Amendment No. 16 deals with the Minister’s freedom to suspend the inquiry without the agreement of the chairman. At present, an amendment introduced after Committee in another place provides that the Minister must consult the chairman. Again, our approach remains consistent with that of Lord Kingsland—that a Minister should not be able to suspend an inquiry without the consent of the chairman. Although the inquiry can be suspended only under certain prescribed circumstances—the completion of an investigation or legal proceedings relating to the same subject matter—we believe that   the clause still leaves room for the Minister to use that power for the Government’s gain, at the expense of the inquiry’s independence and effectiveness.

The phrase

“The matters to which the inquiry relates” is very loose and it could be interpreted widely so as to apply to many different situations. Hon. Members will note that the phrase does not refer to “the same fact scenario” or even “the same individuals”, but refers to any matters to which the inquiry relates, which could conceivably be as wide as, for example, the troubles in Northern Ireland, the health service, telecommunications or social services. Indeed, had such a provision applied over recent years, any inquiry could have been suspended at any time as there are always ongoing investigations or court proceedings in relation to any widely framed subject area.

This seemingly harmless provision provides the Minister with the opportunity to suspend an inquiry at any time. The provision could be used to the advantage of the Government of the day. It would allow them to bury certain issues for a period of time, only to let them resurface when public interest had waned.

Our amendment has received wide support. I believe that the Liberal Democrat members of the Committee have added their names to it, and I look forward to hearing their input to the debate. The Joint Committee on Human Rights in its fourth report stated:

“We are concerned that both the exercise of this power of suspension, and the effect which its potential use may have, could compromise the independence of an inquiry from ministerial control. We have written to the Lord Chancellor expressing this concern, and asking whether consideration has been given to specifying on the face of the Bill the circumstances in which this power may be used, and how these provisions are considered to be compatible with the Article 2 requirement of independence.”

We hope that the Minister answers these concerns and takes the amendment seriously.

The final amendment in the group provides the crescendo to the proposed increase in ministerial power over the chairman of an inquiry. In effect, under clause 15 the Minister can end the inquiry at any time at his own discretion and for any reason. That is even more dangerous than the imprecise scenarios, which can be interpreted widely, in which a decision is made to terminate an appointment or suspend an inquiry. The provision includes no limit on the circumstances in which the Minister may bring an inquiry to an end, and such a decision could be used to hide unsavoury facts or inconvenient conclusions.

Viscount Bledisloe set out the problem clearly in a Grand Committee in the other place. He said that the Minister is

“given an absolute blanket power to terminate an inquiry at any stage without any indication of what grounds are required before he takes that course. Is he allowed to take it because the result does not seem to him to be likely to be very polite to the Government and because an election is pending? Is he to be allowed to take it because the Minister in question has changed and he thinks that his predecessor should not have set up the inquiry? However, if the provision is to remain as it is, it must at least contain the need for the sanction of the chairman.”—[Official Report, House of Lords, 19 January 2005; Vol. 668, c. GC261.]

The other place introduced some parliamentary scrutiny of the Minister’s decision and reasons for bringing an inquiry to an end. We have already shown   our desire to see further scrutiny in a debate following an oral statement. However, even if the amendment finds a place in the legislation, the critical imbalance between the chairman and the Minister in this regard would not be cured. The Minister would still be able to dictate when the inquiry should end to the chairman, but the chairman should have an equal say in when it is appropriate to bring an inquiry to an end, not least because he will be best placed to know the status of the inquiry and any discrepancies and to judge independently the best way to proceed.

We have received extensive support for our proposal. Liberal Democrat MPs have added their names to the amendment and we will, no doubt, receive their valuable input during this debate.

The Joint Committee on Human Rights expressed concern in its fourth report about the wide discretionary power to terminate an inquiry at any stage, with no provision made in the Bill as to the circumstances in which the power may be exercised. The Joint Committee even doubted the compatibility of the provision with article 2 of the European convention on human rights, which could make for an interesting and expensive court case.

Serious issues arise from all the amendments. First, there are serious risks to an inquiry remaining independent when it is subject to so many discretionary ministerial powers. Secondly, there is a risk to the effectiveness of an inquiry when the chairman has so little influence on how it is run. Thirdly, an inquiry could risk losing public confidence, or its credibility, if my first and second points are not addressed. Finally, an inquiry is worth nothing without credibility; without it, it becomes a waste of time, emotion and public funds for those involved and for the country as a whole.

I trust that the Minister will give this group of amendments the attention that they deserve.