Clause 42 - Rules

Inquiries Bill [Lords] – in a Public Bill Committee at 10:00 am on 24 March 2005.

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Photo of Mrs Anne Campbell Mrs Anne Campbell Labour, Cambridge 10:00, 24 March 2005

I beg to move amendment No. 37, in clause 42, page 21, line 20, at end insert—

‘(1A)Rules under subsection (1) (a) may make provision for—

(a)consultation on the terms of reference;

(b)estimated costs at the commencement of an inquiry;

(c)estimated duration at the commencement of an inquiry.’.

It is pleasure to be sitting on a Committee under your chairmanship, Mr. Gale. I am conscious that when the Committee considered earlier clauses there was much debate that was relevant to the amendment, so I shall not speak to it for long. I hope that my hon. Friend the Minister will see fit to accept the amendment, which is very mild. It simply says:

“Rules under subsection (1) (a) may make provision for—” and goes on to talk about

“consultation on the terms of reference; estimated costs at the commencement of an inquiry;” and

“estimated duration at the commencement of an inquiry.”

That would not unnecessarily constrain the Government, but would set the framework for good practice. It must be noted by the Committee that the Minister has not given way on anything so far. I hope that he will break the habit of a lifetime and give way on this amendment.

Photo of Mrs Anne Campbell Mrs Anne Campbell Labour, Cambridge

I am not.

The Select Committee discussed consultation on the terms of reference at some length, and some years ago the Salmon commission said that the terms of reference should be drawn as precisely as possible.

In the course of taking evidence, we found that negotiation appeared to take place between the Lord Chancellor and the chairman of an inquiry. Lord Falconer told the Committee that if Lord Hutton had said:

“in order to get to the truth of what happened leading up to Dr Kelly’s death, I need different ... terms of reference,” he—the Lord Chancellor—would have agreed. That is a strong indication that the Government are open to such negotiation between the Lord Chancellor and chairmen. In such circumstances, it would be sensible to enable more public consultation on the terms of reference. There is little public trust in politicians at the moment, so it is sensible for us to be as open and transparent as possible about the ways in which we do our business.

The terms of reference are extremely important when setting up an inquiry. Indeed, when the Government gave evidence to the Committee, they conceded that there could often be a case for announcing terms of reference after a set period—perhaps a few weeks—to allow for discussion and preliminary investigation, and to allow individuals to make representations to the Minister setting up the inquiry.

In its conclusions and recommendations, the Select Committee said:

“It is essential that the terms of reference enjoy broad consensus and are drawn up in a way which allows full and proper examination of the facts and do not fetter the inquiry in its task. We recommend that the chair of an inquiry should have the ability to negotiate the precise terms of reference before agreeing to undertake the inquiry. We also recommend that the Inquiries Bill should provide specifically for a short period of consultation after any announcement to ensure that the final terms of reference meet the expectations of a particular inquiry. This should include appropriate parliamentary involvement.”

I am conscious that the hon. Member for Orkney and Shetland tabled an amendment on this point, relating to an earlier clause, which he withdrew after some discussion, but I am giving the Minister the opportunity to reconsider the issue and, perhaps, make us all happy by saying that he agrees after due consideration that the amendment is sensible.

Paragraph (b) of the amendment refers to costs. The hon. Member for Huntingdon tabled a similar amendment, which we debated earlier in our proceedings, when there was some discussion about the procedures and who would be responsible for keeping the costs under control.

Under the Bill, the chairman is obliged to have regard to the need to avoid unnecessary costs in considering how to conduct the inquiry, but the Select Committee was struck by the way in which the US Congress conducts its inquiries, which is very different. It may involve congressional legislation, which may not only establish the inquiry but determine its budget. For example, the Act that established the 9/11 commission provided for a budget of $3 million.

Obviously, we have a different legislative framework, and I do not suggest that we need to go as far as placing a limit on the expenditure, but the Select Committee recommended that Ministers should announce a broad budget figure fairly early on, at the start of the inquiry, and that any increase on the announced figure would need to be publicly explained at the end of the inquiry, when final costs were publicised. That approach would not unnecessarily constrain the work of the inquiry. I do not foresee any unnecessary difficulty for the Government in taking that course. However, in a time when there are, perhaps, concerns about the way in which we spend public money, it is right that the Government should be seen to have due regard to costs in that way. It would not seem difficult to make an announcement at the start of the inquiry about the broad costs, as well as the length of the inquiry—something that of course relates to the cost—and, at the end, to announce the actual cost and provide an explanation if the inquiry has run over budget.

I hope that the Minister will be prepared to accept amendment No. 37.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs) 10:15, 24 March 2005

I commend the hon. Member for Cambridge (Mrs. Campbell) on her constructive input and recognise how she has represented the interests of the Select Committee, on which she serves very well. The amendment deals with the principle that we promoted in amendments Nos. 4, 5 and 20, and I shall not take up the Committee’s time by repeating our arguments. However, in summary, amendment No. 4 would have placed some control over ministerial freedom to draft the terms of reference, and amendments Nos. 5 and 20 dealt with the pressing issue of the ever-increasing costs associated with public inquiries.

The hon. Lady has approached those concerns in a slightly different way. Instead of prescribing more intervention from the chairman or Parliament for every inquiry, her amendment would provide an opportunity for the appropriate authority to introduce rules for every specific inquiry. It should be stressed that the introduction and extent of such rules would be optional, and therefore their effectiveness might be limited.

As to the terms of reference, we asked for agreement between the Minister and the chairman to be obligatory. By contrast, the amendment would allow the authority to “make provision for” consultation. That might go some way to ensuring that the chairman is adequately consulted, but it would not ensure   agreement, and its application to consultation with the chairman for the original terms of reference might be limited.

The Committee debated the need to control costs and avoid unnecessary expenditure of taxpayers’ money. The amendment would give the appropriate authority the option to make provision for

“estimated costs at the commencement of an inquiry”.

We fail to see why such provision should be at the discretion of the appropriate authority. It should be obligatory at the outset of every public inquiry, as addressed in amendments Nos. 5 and 20.

The hon. Lady has also proposed that control be available in relation to the duration of inquiries, an issue that has not, until now, been tackled by the Committee. We welcome the introduction of that and she makes valid points. For example, the Saville inquiry was expected to take one year to complete. That was nearly seven years ago and we are still waiting for the final report. The disastrous collapse of the Jubilee line fraud trial after 21 months, at a cost of £60 million, shows how vital effective case management is, whether it is for a trial or an inquiry.

Some checks on the duration of inquiries are required. An overly long inquiry translates into increased costs and a greater commitment of time for those involved. It also allows the period of uncertainty regarding the subject matter of the inquiry to continue, which runs contrary to public interest and may cause much distress for the next of kin when it relates to someone’s death. However, it is difficult, if not impossible, to forecast at the outset exactly how long an inquiry will last. Therefore, it seems sensible to give the appropriate authority the option of calling in the chairman to check what is happening, if it is felt that the inquiry is taking an unreasonably long time.

On the terms of reference and costs, the optional measure does not go far enough to ensure the involvement of the chairman and the avoidance of over-expenditure. However, given that our amendments were not accepted by the Government, we are willing to support the amendment in the alternative. We also welcome the recognition of the need to control the duration of inquiries. On that basis, we consider that a Division on the amendment would be appropriate.

Photo of Michael Connarty Michael Connarty Labour, Falkirk East

I was not going to speak, but I was so impressed by the reasonable nature of the amendment and the way it was moved that I will give it further thought. It seems to me that some of the consultations need not be covered by the Bill if there is a custom of doing what those consultations suggest. That may be more reasonable. I have some reservations about estimating costs and duration because, instead of focusing on the inquiry, those who have an axe of a political nature to grind, will focus on the estimates.

The Government have set many targets to raise the standards of public services, but they get attacked because they may not reach such a high standard. That becomes a political point of contention. I was slightly disappointed that my hon. Friend the Member for Cambridge referred to the United States. The   Whitewater inquiry, which ran right through the Clinton Administration, was not a good reference for cost or duration, or even purpose, because it did not find anything on which to try anyone. Is there a custom of consultation, because it is necessary for the chair of an inquiry to have some dialogue with the person who sets the terms of reference?

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I am sympathetic to the amendment. I pay tribute not only to the hon. Member for Cambridge, who moved it, but to the work of the Select Committee. When a Select Committee reports to the House on an issue of this sort, the House must carefully consider how seriously we take that advice. The Select Committee has carefully assessed an issue that is of great importance when we legislate. It would be inappropriate for me to talk about the issue at length, but we seem to think that Select and Standing Committees are a race apart and that we cannot have cross-fertilisation of ideas and scrutiny from one to the other.

I understand the point made by the hon. Member for Falkirk, East (Mr. Connarty), but I think that the amendment is well drawn because it is not prescriptive, it is permissive. That was the product of careful discussion in the Select Committee.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

The hon. Gentleman makes an important point about Select Committees which I support. He will appreciate that I have given the Select Committee’s point of view on almost every amendment that I have tabled. It is a shame that the Minister has not addressed that.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

I acknowledge that and am grateful for the hon. Gentleman’s support. I say in parentheses that I was locked in one of these Rooms in the middle of the night in 1974 when I had the casting vote. I hope that this is my last appearance in a Standing Committee because I do not want to repeat that in the next Parliament.

Careful consideration was given to the subject in the Select Committee. The amendment draws on that study. I am particularly supportive of paragraph (a) in the amendment which is on consultation. At the moment, the Bill is remiss in that it does not give sufficient emphasis to consultation. It will be improved if there is a specific, albeit permissive, reference to consultation, as in the amendment. There has been a lot of discussion about that at all stages and it would be an improvement if there were specific reference to consultation on the terms of reference.

I acknowledge that there is also value in paragraphs (b) and (c) of the amendment because they make clear and open the issues with which the order of the inquiry may take place. I understand that in the other place the Minister said that there was nothing to stop the Minister from consulting anyone he wished. Of course: that is a fact of life. However, we surely have a responsibility to give more specific guidance than just, “Well, it’s good practice. Wouldn’t it be nice if ... ?” I see the hon. Member for Cambridge nodding. That   was the issue that the Select Committee was trying to address, taking account in particular of the views of those who had been affected by the events that led to the inquiry.

There has been much lobbying from groups interested in inquiries. I take two examples: Deepcut and the death of Patrick Finucane. In those cases, the circumstances were such that those people most intimately affected felt that the terms of reference were either too narrow or drawn in a way that did not take full account of their concerns. If, in those circumstances, the confidence in the validity and value of the inquiry of those most deeply affected is reduced, that is serious.

We are trying to improve confidence in the way in which inquiries are handled, and I very much hope that the Minister will be prepared, as the hon. Lady was, to accept the suggestions as a useful addition that in no way weaken the intention of the Government or the Bill.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I shall try my best to answer the perfectly reasonable points made by my hon. Friend the Member for Cambridge, although much as I might be tempted to give way on the subject, I am sorry to inform her that I do not intend to. That probably will not surprise her, but I hope that my eloquent argument will persuade her that there are very good reasons why the amendment should not be added to the Bill.

I understand that Select Committees often analyse subjects with great seriousness and in great depth. The Bill was prompted by and large by our debate with the Select Committee, so much good work has come from that dialogue, and the Bill is in many ways the product of it. There is always the impetus and temptation to add to a Bill, but I urge my hon. Friend to consider the fact that sometimes we must judge where the balance lies between things that need to be enshrined rigidly—in concrete—on the face of a Bill and in statute and those things that can take place outside statute, with good practice, guidance and convention. We should not always fall into the trap of writing every dot and tittle of legislation in a Bill. That would not necessarily constitute good governance for our country.

I set my remarks in that context because much can be achieved in the spirit of my hon. Friend’s amendment without putting everything in the Bill. She wants to amend the clause, which deals with rules, effectively saying that there should be specific rules on the nature of consultation, cost estimates and the duration of an inquiry. I have concerns about that.

Photo of Mr Paul Tyler Mr Paul Tyler Shadow Leader of the House of Commons

The words that the Minister uses do not accurately reflect what the amendment says. The amendment says “may” make provision. It does not demand, insist or prescribe.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I understand what the hon. Gentleman says, but I cannot envisage circumstances in which we would want such rigid rules. Even if rules were made, they may have implications for, and be misinterpreted by, other inquiries. Inquiries can cover a vast array of territory on any number of issues. As is normally the case, to answer my hon. Friend the Member for   Falkirk, East, there can be confrontation with interested parties about the terms of reference of an inquiry. Sometimes there will be circumstances in which Ministers must react exceptionally swiftly in the public interest—perhaps to a major crisis—and they will need to move very fast. There is also a requirement to consult the inquiry chairman, and we debated wider consultation. To a certain extent, we are repeating some of the issues raised then.

Photo of Michael Connarty Michael Connarty Labour, Falkirk East 10:30, 24 March 2005

The Minister knows that when people come to discuss what interpretation to place on the Act, they will read the Official Report to determine what he said. So is he saying that he would expect the person who makes the rules of the inquiry to consult the person who will be its chairman, if time allows?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

Indeed, past practice has been that there has been wide consultation on most inquiries, and we expect that to continue—I give that assurance to my hon. Friend—but we cannot specify it for absolutely every situation, as we cannot predict what eventualities will arise. However, there is a requirement for the Minister to consult the chairman in such circumstances, and that will be helpful.

Nothing in the current wording would prevent estimates of cost or duration from being included in the rules, as they fall within the definition of “evidence and procedure” under clause 42. Indeed, as I said when we debated some of these issues on Tuesday, my noble Friend Baroness Ashton made a commitment to the other place that there would be consultation on things such as estimates. I am happy to repeat her commitment, but I do not wish to pre-empt the consultation on the rules.

The Government said in their response to the Public Administration Committee report that they were sympathetic to the idea of publishing estimates of costs and duration. However, we must consider carefully whether that can be done in a meaningful way, particularly bearing in mind the debate about the drawbacks of including rigid requirements for estimates in the Bill. That is why we want to consult on that point.

On the other hand, I am not clear what would be achieved by rules on consulting on the terms of reference. The Minister must consult the chairman, as I said, and there is nothing to prevent wider consultation if the Minister considers it appropriate, but some of the same objections to including an obligation for consultation in the Bill apply to including one in the rules. It is not possible to come up with a meaningful definition of how widely the Minister is expected to consult which does not create false expectations and increase the possibility of challenge, perhaps right at the outset of an inquiry. That would be undesirable.

Photo of Mrs Anne Campbell Mrs Anne Campbell Labour, Cambridge

Does my hon. Friend agree that much more public consultation in the case of the Hutton inquiry, for example, would have been useful? There was a great deal of controversy about the way in   which it was set up and the narrowness of its remit. I am sure that there was private consultation between the Lord Chancellor and Lord Hutton, but would not it have been better to have had the public debate before the inquiry got under way rather than afterwards? There was a great deal of criticism, particularly in the media and from politicians, about the narrowness of the inquiry. It is always better to get such things out of the way beforehand rather than have them come back to bite one afterwards.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

With the greatest of respect to my hon. Friend, it is slightly unfair to say that in all circumstances there must be a particular period for consultation before a Minister sets up an inquiry or sets out its terms of reference. Consider what the public might expect from a Minister, particularly if a crisis arises or an emergency situation develops. They naturally look to the Government to take a lead, to set up an inquiry and to get on with an investigation and make progress in finding out what went wrong in a particular situation, rather than having a protracted fixed period for consulting on whether and when the edges of the terms of reference might or might not be defined. I am not saying that consultation might not be a good thing in normal circumstances, but it would not be right to set it out in fixed and rigid rules.

Photo of Mrs Anne Campbell Mrs Anne Campbell Labour, Cambridge

My hon. Friend makes two points. The flavour of the amendment is permissive, in that it says “may” rather than “shall” or “must”. It would therefore be up to the Government of the day to decide whether to follow the rules suggested. It is perfectly possible that they would have good reasons, including urgency, for not following them.

In their evidence to the Select Committee, the Government conceded that there could be a case for announcing terms of reference—perhaps a few weeks after the inquiry had been set up—to allow for discussion of the preliminary investigation. So an inquiry could be set up, and much of the preliminary work could be done, without the terms of reference, which would still be at the stage of public consultation.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

Again, I am not convinced of the wisdom of taking that course of action. I hear what my hon. Friend says about “may”, but my understanding is that it is used quite frequently in clauses dealing with rule-making powers, where it is often given more weight than might be the case in normal parlance. That could leave an inquiry’s terms of reference open to challenge and lead to protracted court discussions, which would not necessarily be appropriate.

I also remind my hon. Friend that rules in such legislation normally relate to the evidence and procedure involved in running an inquiry, not to the decision to set up an inquiry in the first place. So, again, I have my doubts about whether clause 42 is the right place to deal with the problem. The idea that there should be full consultation in normal circumstances might be an appropriate topic for guidance, and we might be able to consider it in a   different context, but I do not necessarily agree that we should always put these things in legislation.

It can often be helpful to have time for consultation, and clause 5 is drawn up in a way that makes that possible. However, the need for consultation varies from case to case, which is why it would be wrong to go for the rigidity suggested in the amendment. I understand my hon. Friend’s case, but it is not appropriate to the rules clause and it would not be desirable to have rigid rules setting out how consultation must be carried out. However, I thank her for at least raising the issue. In the general consultation that we shall have on the rules, we shall want to go into such things in more depth. I urge her to consider those comments and withdraw the amendment.

Photo of Mrs Anne Campbell Mrs Anne Campbell Labour, Cambridge

I must confess to being disappointed that my hon. Friend is not prepared to accept this reasonable amendment. Setting out the proposed framework in the Bill would provide for a Minister to take different action if that was considered necessary at the time. It would also provide a good practice framework under which inquiries could be conducted.

I completely take my hon. Friend’s point that a Minister may need to act quickly to prevent undue public concern. However, in the light of the advice that the Lord Chancellor gave the Select Committee, there could be a case for announcing the terms of reference after a set period—perhaps a few weeks—to allow for discussion of the preliminary investigation and to allow individuals to make representations to the Minister setting up the inquiry. There is no reason why the inquiry should not be started and some preliminary work done while the terms of reference are being agreed.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 8.

Division number 7 Nimrod Review — Statement — Clause 42 - Rules

Aye: 3 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

NOES

Question accordingly negatived.

Clause 42 ordered to stand part of the Bill.

Clauses 43 to 48 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 49 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 50 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clauses 51 to 53 ordered to stand part of the Bill.