Amendment moved [this day]: No. 36, in clause 5, page 2, line 21, at end insert—

‘(ia)consult, as appropriate, on the terms of reference.’.—[Mr. Carmichael.]

I remind the Committee that with this we are discussing Amendment No. 38, in Clause 5, page 2, line 28, at end insert—

‘and may consult any other person or bodies as he considers appropriate.’.

The Committee will recall that I was speaking as the whistle blew this morning. I do not know whether that entitles me to make another point, but I had just drawn to the Committee’s attention the fact that both amendments would give the Minister the opportunity to consult other parties on the terms of reference for any inquiry to be convened under the Bill. The intention is to widen the range of people who should be consulted.

I acknowledge that the Government conceded, properly, in the other place that consultation should take place between the Minister responsible and the person nominated as chairman. However, there is a great deal to be said for the consultation being as wide as the Minister can make it. This suggestion perhaps moves on from what the hon. Member for Huntingdon (Mr. Djanogly) said about openness and independence. If there is scope for consultation on the terms of the remit with interested parties beyond the chairman, it would be in the interests of the standing of the inquiry to carry that out. Currently, the consultation is fairly narrowly circumscribed by the Bill and it takes place purely with the chairman. Other parties would not have to be consulted on every occasion, but it would be sensible for the Minister to have the power to consult them.

The two amendments would have a broadly similar effect. Amendment No. 38 may sit more easily in the Bill, but there is no great distinction to be drawn between them. They represent a fairly modest extension of the Bill that I think will find favour with the Government, so I leave it to the Minister to choose which to accept.

Amendment No. 36 specifies that before the setting-up date for the inquiry, as well as setting out the terms of reference and stating the number of panel members, the Minister must

“consult, as appropriate, on the terms of reference.”

However, as the Minister is already required to consult the chairman on the terms of reference, it could be argued that the amendment is superfluous. Also, we argued that the chairman should have to agree to the terms of reference, so the wording would not fit in with the way in which we look at the world in general. However, our agreement-type amendment was defeated, and if were to accept the need to consult the chairman, we could support the amendment for three reasons. First, it would reaffirm the importance of consulting the chairman. Secondly, it specifies that any consultation must take place before the setting-up date of the inquiry. Thirdly, it would allow the consultation of other appropriate persons or bodies before the inquiry began. Having said that, I shall make one small, pernickety point: it may be more desirable to position the new provision before, instead of after, subsection (1)(b)(i), because in its current position it does not reflect the chronology of events.

Amendment No. 38 is permissive, not prescriptive. It would allow the Minister to consult

“any other person or bodies as he considers appropriate” before setting out or amending the terms of reference. As there is nothing to the contrary in the Bill, the Minister always had that option open to him, so the amendment would not change anything. It would, however, underline his option to consult elsewhere, and therefore might encourage him to do so, thereby having some, albeit negligible, advantage. Although the amendment is not objectionable per se, it could be argued that the express option to consult other people could distract from the obligation to consult the chairman. As we are arguing for more chairman involvement, we would want to avoid any amendment that would compromise what little influence the chairman currently possesses.

The hon. Member for Huntingdon makes the arguments against amendments Nos. 36 and 38 for me. I was tempted to do otherwise, but now that he has convinced me, it occurs to me that I could give other reasons why we should not accept them.

Let us hear them because they are all crap!

Luckily, I do not think that Hansard will catch the full flavour of the hon. Gentleman’s interjection—at least I hope that it does not.

I understand the rationale behind Amendment No. 38, but it does not add anything because if Ministers consider such consultation is appropriate, they will consult, as is the current practice. I expect that they will generally consult, because it is important to get terms of reference that are workable and supported at the outset. Indeed, in the consultation paper “Effective Inquiries”, which we published last May, the   Government acknowledged that sometimes there would be a good case for allowing a period of time between the announcement of an inquiry, and the naming of a chairman and the settling of the terms of reference, and that during that period some consultation on the draft terms of reference with interested third parties might be appropriate. That view was supported in responses and the structure of clauses 4 and 5 reflect it.

However, it is important to remember that ultimately an inquiry has higher purposes than just involving those most directly related to it. It is not set up just to serve the interests of a particular person, but to serve the interests of the public at large. Those affected by distressing events, particularly the survivors and relatives of persons killed in an event that is subsequently being inquired into, will often have very strong views on the proposed form and conduct of an inquiry, including its panel membership and terms of reference. Although it is important to the success of an inquiry to listen and to try as far as possible to address some of those concerns, it is also important for the inquiry to restore public confidence in general and to provide a measure of closure. The Minister should take those views into account as far as possible, but ultimately he should proceed in the interests of wider public policy. We would do no good if we created an expectation among those involved that the inquiry must be conducted, and the terms of reference drawn up, exactly in accordance with the wishes of those most closely involved.

Amendment No. 36 is of slightly more concern because it would compel a Minister to consult. That returns us to the potential delay to the commencement of an inquiry and also possibly opens up the issue of inviting legal challenges at the start of an inquiry if there is a dispute about whether there had been sufficient consultation. That would not be desirable.

Similar amendments were tabled in Another place and withdrawn, because concerns were expressed by a number of noble Lords that there could be a propensity to go to judicial review. The Government have examined the matter in detail and agree that carefully considered terms of reference are the key to a successful inquiry, and that the need to consult will vary from inquiry to inquiry. However, as I said in relation to a couple of other things, the final decision must rest with the Minister so that we can make progress as soon as possible with timely investigations.

I do not deny that there are good, sound sentiments behind the amendments, but it would not be appropriate to include them.

If that is what the Minister considers to be higher purposes, we are in more trouble than we realised. He suggested that the amendments would have the effect of compelling Ministers to consult. In fact, if he has regard to the terms of the amendments, he will see that Amendment No. 36 states:

“consult, as appropriate, on the terms of reference.”

That, to my mind, leaves a great deal of discretion in the Minister’s hands. If the Minister were to decide, reasonably, that no consultation beyond that with the   chairman were appropriate, he would not be compelled to consult more widely. Similarly, amendment No. 38 makes that clear by using the phrase “may consult” rather than “must consult”. The may/must debate has exercised Committees ad nauseam in the past.

The Minister said something interesting earlier, and he is probably correct when he says that Ministers will consult. It is quite important that they do. The thinking behind the amendments, however, is that there may be circumstances in which, for his or her political aims, the Minister chooses not to consult and prays in aid of the legislation to say that that he has no power to consult beyond the chairman. The Minister will say, “Parliament has given me a power and a duty to consult the chairman, but nobody else. Although I wish to consult, I do not have the power to do so.”

Our amendments would close that bolthole for a Minister who did not want to consult for fear of hearing things that he or she might not wish to hear. That possibility is one of the higher purposes of the Bill. I am disappointed that the Minister does not agree with me. In all sincerity, however, this is not a matter on which to divide the Committee, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.