Grand Committee Report of 18 January 2005

Official Report of the Grand Committee on the

  Inquiries Bill [H.L.]
  (First Day)
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Viscount Simon) in the Chair.]
  The Deputy Chairman of Committees (Viscount Simon): Before I put the Question that the Title be postponed, I remind your Lordships of two points of procedure for today's Committee stage. Noble Lords must speak standing; and the House has agreed that there shall be no Divisions in the Grand Committee. Unless an amendment is likely to be agreed to, it should be withdrawn.
  If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.
  Title postponed.
  Clause 1 [Power to establish inquiry]:
  Lord Kingsland Lord Kingsland: moved Amendment No. 1:
  Page I, line 3, at beginning insert "Subject to subsection (1 A),"
  The noble Lord said: The Inquiries Bill, in our submission, manifests two unacceptable changes in the balance of constitutional power. The first change is a shift of power away from Parliament to the Executive, and the second a shift of power away from chairmen of committees of inquiry to the Minister who sets them up.
  The first group of amendments deals with the first of those two shifts in constitutional power; that is the shift away from Parliament to the Executive. As I observed in the Second Reading debate on the Floor of the House, this shift is consistent with a number of others engineered by the Government over the past seven years.
  The amendments in this first group are principally driven by Amendments Nos. 1 and 2. The key to the intention that lies behind the amendments is to, in a slightly modified form, re-insert the substance of the Tribunals of Inquiry (Evidence) Act 1921.
  The 1921 Act could come into effect only as a consequence of a resolution of both Houses of Parliament. Why do we regard this as being a crucial ingredient in the new Bill? The system set up in the new Inquiries Bill may work very well for investigating issues that do not relate to the responsibilities either of Ministers in their personal capacity, or of Ministers as heads of a department and therefore responsible for actions of their civil servants. However, the Bill does
  GC 192
  not help when it is a Minister himself, or a civil servant in a Minister's department, who is alleged to have committed some form of wrongful act, or to have fallen below the constitutional standards that we expect of Ministers and civil servants. It is plainly ludicrous, if your Lordships reflect on it for no more than a few seconds, that a Minister should investigate his own conduct or that of any other Minister who is in the Government of the day.
  Therefore, Parliament is the proper forum to initiate an inquiry into ministerial misdemeanours. There are two ways in which this can be done. One is through the mechanism of the 1921 Act; and that Act still has relevance to those situations where an inquiry requires a full-scale judicial investigation, with the judge having all the powers that he would have were he sitting in the High Court, both in relation to witnesses and legal representation.
  There is a second reason why we are raising the relationship between Parliament and Ministers in this first group of amendments. As a last resort, constitutionally it is to Parliament that Ministers are accountable. Until the Marconi inquiry just before the First World War, the standard way in which a Minister or his department was investigated was by means of a parliamentary Select Committee. As Members of the Committee are aware, this process became discredited after Marconi when the committee divided on strict party lines, and led, I think, directly to the passage of the 1921 Act.
  However, there is no reason why your Lordships could not devise a new scheme of parliamentary investigations in the form either of a reconstituted Select Committee or some other named committee which would put Parliament back in the driving seat without at the same time incurring the disadvantages of party divisions that were so manifest in the committees that met just before the First World War. The most obvious way of doing this would be to use your Lordships' House as the forum for such a committee investigation. The reason why I say that is because your Lordships' House has the great advantage, which another place does not, of non-party affiliated Cross-Benchers. Why should not future investigations be based in your Lordships' House with a minimum of three and a maximum of five noble Lords sitting as committee members, the majority of whom would come from the Cross Benches? That seems to be an eminently suitable way to employ the immense talents of Cross-Bench Members of your Lordships' House.
  I readily admit that this aspect of investigation could not be dealt with under the Bill. However, there is absolutely no reason why your Lordships' House should not, in another forum, look carefully at your Lordships' current Standing Orders to see whether or not they are suitable to support such an investigatory committee system.
  I am—perhaps I am alone in that—immensely impressed by the way the United States Senate conducts investigations. There are three ingredients that have made those inquiries particularly effective:

  GC 193
  first, the ability to hear evidence on oath; secondly, the capacity to require the person they want to investigate to be there; and, thirdly, the use of standing counsel to drive the work of the committee forward. I regard those three ingredients as essential to the success of any future investigatory committee set up in your Lordships' House.
  As far as hearing evidence on oath is concerned, that is a matter which should provide no barrier to my future ambitions, anyway, for such investigatory inquiries. It is clear, from glancing at Erskine May, that either House can, if it wishes, make an order allowing Select Committees, or other committees, to hear witnesses on oath. The most recent footnote in the current edition of Erskine May refers to an inquiry by the Commons Trade and Industry Committee in the Session of 1987 to 1988. The power was also used twice in the 1970s.
  In your Lordships' House, administering an oath to a witness before a Select Committee has not occurred since the 1930s; but there is no reason for your Lordships to think that it could not be resuscitated in that form when an investigatory committee was set up. Habitually in the conduct of opposed Private Bills, which do not pass so frequently through your Lordships' House as they used to, the proceedings are regarded as quasi judicial in character and witnesses are required to take an oath before giving evidence.
  The power of another place to administer oaths was codified in the Parliamentary Witnesses Oaths Act 1871, which provides that another place can administer an oath to witnesses. A similar power for committees of your Lordships' House was codified in the Parliamentary Witnesses Act 1858. The Perjury Act 1911 applies to evidence given under both sets of legislation. In short, there should be no difficulty about hearing evidence on oath.
  Although there is no statutory power or basis for either House to request papers in connection with committee inquiries, I understand that the power to send for persons is an inherent power of both Houses. This is an area that is less clear cut than a question of oaths. There have been occasions in recent years when the committees of both another place and your Lordships' House have requested the presence of senior Cabinet Ministers to appear in front of them. On a few of those occasions—not many—the request has not been granted and no further action has been taken by either House in the face of that refusal. I have no ready answer to how we would handle the situation; but it seems appropriate, in the case of your Lordships' House, to put it to the Government that, given the well entrenched parliamentary convention of ministerial accountability, it would be shocking for a Minister— whatever his or her rank in the Government or the Cabinet—to refuse to appear in front of a committee investigating an alleged demeanour, either by that Minister or another ministerial colleague.
  I hope that your Lordships' House will take this aspect of the spirit that lies behind this first line of amendments very seriously; although I underline that
  GC 194
  there is nothing that Committee Members can do directly in the Bill to resuscitate the practice of parliamentary Select Committees.
  In recent years, when Ministers are alleged to have committed some misdemeanour or to have been negligent in some area of their work, it has often been the practice of Prime Ministers not to invoke the 1921 legislation but, under the cover of the royal power of prerogative, to set up a bespoke committee to suit the particular requirements and pressures of the time. I referred to that in the Second Reading debate and I do not propose to go into it in detail again now. Suffice it to say that transparency in government requires all the investigating procedures that we have at our disposal as a political society to be set out clearly in either the Standing Orders of Parliament or in statute. The time has come to do that. To that extent, I applaud what the Government say they intend to do. However, the Government have fallen down because they have failed to deal with what I regard as constitutionally easily the most important investigations that we have to undertake. I beg to move.
  3.45 p.m.
  Lord Goodhart: The group includes two amendments—Amendments Nos. 3 and 65—to which my noble friend Lord Smith of Clifton and I have put our names. It also contains an amendment—Amendment No. 66—in our names.
  We put our names to the amendments because there is a case to be made for keeping the Tribunals of Inquiry (Evidence) Act in existence not as the sole method of instituting an inquiry, but as a reserve for inquiries of particular significance—they need not be confined to allegations of misconduct by a government department or a Minister—where it is thought that it would strengthen the inquiry to have the benefit of parliamentary approval to its establishment. There is no procedure under the Bill for parliamentary approval. We do not think that it ought to be the only method. Apart from anything else, the Bill authorises a large number of inquiries that would until now have been authorised by various individual statutes, none of which apart from the 1921 Act require parliamentary approval
  I note with interest what the noble Lord, Lord Kingsland, said about Select Committees. He made an interesting suggestion, but I have some reservations about it. In particular, the idea that a Select Committee of your Lordships' House might investigate misconduct of Ministers who are Members of the House of Commons would lead to an explosive confrontation with the House of Commons, and I have no wish to trigger that particular explosion
  Up till now, the use of Select Committees for carrying out what I might call forensic investigations has shown itself to be unsatisfactory. For example, the investigation by the Select Committee on Standards and Privileges into the Keith Vaz case particularly showed that its members were a wholly unsuitable group of people to carry out a prolonged cross-examination of a witness. Therefore, the noble Lord is

  GC 195
  quite right to say that such a scheme could work only if there were standing counsel to the Select Committee who would conduct all necessary cross-examinations. He is right to refer to the importance and effectiveness of the American congressional and senatorial committees, which employ standing counsel
  It is an interesting idea, so it is with some regret that I do not see any great likelihood of our proceeding down that route. I mentioned at Second Reading that there certainly is a role for what was suggested by the Committee on Standards in Public Life; namely, that there should be a small panel of people of political impartiality and highly regarded integrity, one of whom could be available to be called on by the Prime Minister if a case arose, such as the investigation into Mr Blunkett, or the investigation of the conduct or alleged misconduct of a government Minister
  Having said that, therefore, the main point on which we support this group of amendments is that there is a good case for keeping the 1921 Act in reserve for cases where for special reasons it is desirable to have parliamentary endorsement of the setting up of a particular inquiry.
  Lord Borrie: The noble Lords, Lord Kingsland and Lord Goodhart, raised most important matters very appropriate to the beginning of the Committee stage of our Bill. They raise the fundamentals as to what extent, if any, Parliament, or one House of Parliament, should conduct or be involved with inquiries of the sort that are otherwise intended to be the concern of the new-style inquiry of this Bill.
  The noble Lord, Lord Kingsland, fairly referred to the origins of the 1921 Act and the discredit into which House of Commons inquiries have got, particularly because of the likelihood that inquiries involving Ministers who, inevitably, came from one party rather than another would divide probably on party lines.
  The noble Lord, Lord Kingsland, has made the interesting point that whereas—nowadays at any rate, with a few exceptions—almost every Member is a member of one party or another, occasionally there is a Martin Bell. In this House, there are lots of Martin Bells, and thank goodness for that: one of them on my immediate right has conducted an inquiry. The appropriateness of Cross-Benchers and their certain freedom from party obligations is, of course, well known.
  However, although I thought that was—I suppose I mean this slightly in a pejorative sense—a clever idea from the noble Lord, Lord Kingsland, I do not really regard it as very helpful, if only partly for the reasons put forward by the noble Lord, Lord Goodhart. In this day and age, the great majority of Ministers and Cabinet Ministers are Members of the House of Commons. The accountability of all Ministers is more to the House of Commons than to the House of Lords. Without the House of Commons, accountability would mean far less than it does in terms of policy and the integrity of Ministers, and so on. It would not be worn in this day and age, as it were—let alone in the 1920s—for the House of Lords to be the regular body that conducted inquiries, albeit that the inquiry is
  GC 196
  being done by non-party Members in the House of Lords. I do not think that that would be appropriate at all.
  Then one comes to the point about Parliament—either or both Houses—being involved in some way at least in approving the setting up of an inquiry, which, after all, was a key feature of the 1921 Act. 1 am not sure that that requirement of the 1921 Act has much usefulness in this day. I know that there is some difference between the two parties opposite on that matter, but there is some degree of enthusiasm for the idea that the 1921 Act should be kept for some inquiries of great significance or something of the sort.
  Let us examine what difference that would make compared with the sort of inquiry envisaged and proposed by this legislation. In both cases, Ministers will initiate and have, under the 1921 Act, initiated the notion that there should be a tribunal of inquiry. As the noble Lord, Lord Kingsland, said very fairly at the beginning, there is no question, either under the 1921 Act or this Bill, of Ministers investigating themselves. The idea under this Bill, as with the 1921 Act, is that the inquiry will be conducted by a judge or other appropriate independent person, possibly with other panel members who comprise part of the inquiry team. There will no doubt be, as there has been so frequently with actual tribunals of inquiry under the 1921 Act, a counsel representing the inquiry who will be the main individual asking the questions and probing matters on behalf of the inquiry to get at the truth, which is what the inquiry is all about. Frankly, I do not see any particular advantage, in terms of either constitutional propriety or practicality, whether the inquiry is set up with the approval of both Houses of Parliament or by the Minister, who, because of the normal rules of accountability, is accountable to Parliament anyway for what he does in setting up the inquiry.
  Without wanting to overstretch the point, I am not sure that I have heard as yet any real case for there being a continuation of, or reprieve for, the 1921 Act, instead of letting it go the way of history and replacing it with the processes proposed by this Bill, which we may amend or improve but which in any case will cover independent impartial inquiries when matters of public concern suggest that something should be looked into.
  Lord Howe of Aberavon: I make one preliminary comment on a point suggested by the noble Lord, Lord Goodhart. Of course, I have seen the advocacy for establishing a panel of potential chairman, but I do not have much enthusiasm for that suggestion. It would mean a group of people waiting in the wings for an indefinite period. One must very often make a specific choice of a chairman attuned to the need of the particular inquiry. It would be a rather unnecessary, though benevolent, idea.
  On the more substantial topic of the debate, the noble Lord, Lord Borrie, closed by saying that he could see no justification for a "reprieve" of the 1921 Act. A reprieve is normally something available to a miscreant who has done something wrong and who is going to be allowed, justly, to get away with a

  GC 197
  suspended sentence. I have heard nothing at all to suggest why the Act should be repealed. That is the first proposition in the Bill, and it is for the Government to justify their conclusion.
  I agree with the remarks of my noble and learned friend and my noble friend Lord Kingsland, and the noble Lord, Lord Goodhart, about the inadequacy of House of Commons inquiries of the kind that my noble friend would like to see happening. That inadequacy is through no fault of the Commons; it may not be an incorrigible shortcoming, and it may be possible to work out a way in which to do it. But at the moment the Commons committee that attempts a disciplinary inquiry suffers from the faults that tend to bedevil such inquiries.
  The fact is that the questioning in Commons committees is done by a galere of would-be grandstanders and not by a counsel sustaining a cross-examination, in which very often the most important question that you can put is, "Now would you be kind enough to answer the question I put originally?". That never happens in a Select Committee, because someone else is always waiting to break in with some different question before you can reach that point.
  There was a period, which happened just within my experience, when Commons committees, certainly the Privileges Committee, which I had the privilege of chairing on a couple of occasions in my time as Leader of the Commons, investigated the conduct of parliamentarians. In those days that was conducted with the Attorney-General acting as the counsel to the committee, in the happy far-off days when there were enough counsel in the House of Commons to allow the Attorney-General to be appointed in that House rather than in our own. So in those days, when conventions were more clearly established, and the balance was better than it is today, that could be done. But my noble friend would have to work quite hard to resurrect that atmosphere along the lines that he would hope for.
  I believe that there is still a need for the 1921 Act, for two reasons. This is why the burden of proof is on the Government as to why we should contemplate abolishing it. The first reason is that, as I understand it, the appointment of a 1921 Act tribunal does not require the initiative of a Minister of the Crown, but could be established on the initiative of a Back-Bencher of any party. I may be wrong about that; one may need Crown consent or such form that I have half-forgotten. Certainly, there are circumstances in which Parliament might well wish to establish an inquiry without much enthusiasm on the part of the Government. For this Government now to deprive Parliament of whatever initiative it has under the 1921 Act without good cause seems a gratuitous and unjustifiable step.
  4 p.m.
  The other reason adds to the weight of the first. Let us look at the occasions on which a 1921 Act inquiry has been established. It is not easy to detect a very logical line
  GC 198
  of distinction between them and the rest in every case, but I can remember two that were clearly established under the 1921 Act. One was the Londonderry Bloody Sunday inquiry. The tragedy happened on 28 January, and Parliament acted on 1 February to establish the commission. It was Parliament acting with a sense of urgency, representing the national shock to that catastrophe at parliamentary level.
  The other one that I have in mind is the Aberfan inquiry. The origin was different, of course, but the events were comparably catastrophic and tragic. That too was appointed under the 1921 Act, symbolising the attention that Parliament paid to those two inquiries at times of national mourning, in effect. When everyone was rallying round the local community to try to relieve the suffering following the disaster, the engagement of Parliament was important and showed that it cared about what was going on.
  I can see no justification for removing the power whatever. I know that the Minister has a remarkably tidy mind. It ought to stop short of this.
  Viscount Bledisloe: I entirely agree with the noble Lord, Lord Kingsland, that for a Minister to have total discretion on whether an inquiry should be set up to inquire into his own misconduct or that of his department, or the misconduct of a colleague or his department, is, frankly, ludicrous. On the other hand, 1 am afraid that I am so far unconvinced that either remedy—that suggested in his amendment or the alternative that formed the major part of his speech— solved the problem.
  For there to be an inquiry under the 1921 Act, there has to be a vote of both Houses. There will not be a vote in the other place unless the Government agree. If they disagree, the inquiry will not be set up. In every case when an inquiry is set up into ministerial default, it is set up because there is a sufficient disquiet in the other place, as well as here and in the country generally, that the Minister or the Government feel that it would be rash of them or untenable for them to decline to set it up. If that is the position, an inquiry will be set up under the Bill as much as it would be under the 1921 Act. However, if the Government take the resolute view that the matter is not one for an inquiry, there will be neither an inquiry under the Bill, nor an inquiry if the 1921 Act were in place.
  A possible remedy occurred to me during the speech of the noble Lord, Lord Goodhart. He referred to the Committee on Standards in Public Life. If a strong convention could be established that the Government were bound to set up an inquiry if that committee said that something seemed very worrying and to merit inquiry, there genuinely would be an independent outside body that could trigger an inquiry, although technically it did not have the power to set it up.
  Secondly, in relation to the alternative proposed by the noble Lord, Lord Kingsland, while I am deeply delighted with the praise he has heaped on the virtues of the Back Benchers—sentiments which I hope he will

  GC 199
  convey to his right honourable friend, his Leader, who seems to be somewhat less impressed by them, being wrong-minded on this issue—I do not believe that it is practical to suggest that even the independent Members of this House could be allowed by the Commons to investigate the misdemeanours of Members of another place to summon before them those Members to demand that they answer questions on oath and to be censured by Members of this House on a matter where, in the view of the House of Commons or of the Government, it was not desirable to have an inquiry.
  I hope that before the next stage of the Bill, the noble Lord, Lord Kingsland, will be able to find a remedy for the point he made, but I doubt that he has yet done so.
  Lord Laming: I rise with some diffidence as I am surrounded by distinguished lawyers in front and behind. Not being a lawyer, that is slightly inhibiting, not least because I greatly admire what lawyers bring to inquiries. Long may it continue.
  I welcome the Inquiries Bill in general. I hope that if it is passed it will replace the 1921 Act. I see no reason why a new Act of Parliament should not be adequate to meet today's needs and those of the future. The 1921 Act has been on the statute book a long time. During that period there has been a large number of inquiries into a wide variety of subjects. It is not unreasonable to assume that lessons have been learnt from them which can be brought to bear on current legislation.
  I hesitate to make the next point because I may be entirely wrong. If my memory serves me right, under the 1921 Act, a judge must chair an inquiry. If that is right, I have real concerns. But apparently that is not the case, so I shall not make the point!
  I agree with the noble Lord, Lord Kingsland, that the Bill places too great an emphasis on the Executive at the expense of Parliament and gives too much power to the Minister as opposed to the chair of an inquiry. I am certain that anyone who takes on the chairmanship of an inquiry ought to be seen to have the necessary authority to command the confidence of the general public. Their authority ought to be reinforced by their independence. Some of the amendments will go a long way to ensuring that a better balance will be struck between the Executive and Parliament and between the Minister and the chair of a committee.
  However, Ministers are accountable to Parliament and the vast majority of inquiries will be on matters in which there is a ministerial interest. I can think of no inquiry in which there is not a ministerial interest of one kind or another. And of course all inquiries operate under legislation passed by Parliament, and it is right that they should be established by Parliament and report fully to Parliament.
  I respect the work of Select Committees, but in my experience they should be seen as part of the parliamentary process and be entirely separate from the conduct of an inquiry. Inquiries should be seen to be independent of the parliamentary process. If I have one overriding concern about the Bill it is that it does not sufficiently support the independence of inquiries.
  GC 200
  I believe that there is an important place for inquiries in our society as part of the checks and balances; on power, the way in which decisions are made and the impact of those decisions on people. Members of the public value greatly the independence of inquiries and we should devise machinery which is separate from Parliament to conduct matters of this kind. Therefore I support the Bill.
  Viscount Goschen: I am not a lawyer and I have never chaired an inquiry. Therefore I am at a double disadvantage. However, I have had involvement of one kind or another with inquiries in the maritime field when in government.
  I support the sentiments expressed by my noble friend Lord Kingsland concerning the importance of involving Parliament. He put his finger on what I believe to be the central problem with inquiries and the fact that the Bill will set in stone the involvement of the Executive—of Ministers—in setting up an inquiry to inquire into their own conduct.
  In other aspects of life and in the judicial process, on which I am the least qualified person in the Moses Room to speak, it would seem extraordinary if a defendant were allowed to choose his own judge and go on to choose others—perhaps prosecuting counsel. I do not believe that that would be acceptable. Similarly, it is not acceptable for the Government to be able to choose their own judge and, more importantly, to set the terms of an inquiry.
  Within the past year or two, we have seen a plethora of inquiries and they are almost all instantly attacked for the fact that the Minister, or various arms of the Government, draw up the terms of reference. They are almost always attacked for being too narrow. That is a significant problem and at the outset it weakens the strength of the inquiry and its conclusions. Those attacks have been made thick and fast on inquiries of recent years.
  I do not have the instant answer to that problem. We have heard that there are real problems with Parliament running inquiries, but is see no reason why there should not be a Standing Committee of one kind or another—we can pursue this matter further at later stages of the Bill—which could at least be involved in the selection of the judge or chair of the inquiry and to set the terms of reference. My real emphasis would go on the latter point rather than on the former. The setting of the terms of reference is important and if that could be approved by Parliament more strength would be given to the government who set up an inquiry in demonstrating that that has been done at arm's length.
  Lord Fraser of Carmyllie: For almost exactly the same reasons as advanced by my noble friend Lord Goschen, I would come to the contrary conclusion. I consider that one of the least attractive features of the plethora of inquiries to which he referred has been the unseemly argument that proceeded the establishment of the inquiry determining what form it should take. What should its terms of reference be? Should a judicial person head it? That has taken place

  GC 201
  sometimes in an extraordinarily unseemly fashion and has done little to bring about a satisfactory decision or public appreciation of what was being discussed.
  4.15 p.m.
  My concern would be that if the 1921 Act were to be left in place, it would still be seen as the Rolls Royce or the grand-daddy of all inquiries. It would not matter whether the Government sought to establish an inquiry under this new Bill; there would be an endless argument to the effect that what the Government should have done was establish an inquiry under the Tribunal of Inquiry (Evidence) Act 1921. That will provoke something of a muddle, which is to be avoided at all costs.
  I am sorry to say that I am far too cynical about resolutions of both Houses. I have no doubt that in this House there might be an occasion, particularly with Cross-Benchers, when a resolution could be pushed through to attack Ministers for this or that, but I have no confidence that that could be done in the House of Commons unless the government of the day were settled in their determination that there should be an inquiry and they concurred with the establishment of it. Not least, it is not difficult to see how, if that was the point at issue, if the conduct of a senior Minister was in question, if he had not already resigned or been forced from office, it seems to me that what the House of Commons would do would be to put it to a test of confidence in the Government. In such circumstances, even though it looked like a resolution was about to be passed, once the Government Whips of the day had the chance to tell their troops that this was to be regarded as a matter of confidence, I have no doubt whatever what the outcome of that resolution would be; it would be defeated.
  This Bill is not perfect, as the Minister knows, although I share the view that it is a significant improvement on what we have at the moment. However, I do not think that it has any real chance of becoming the model for the type of inquiries that we want unless the 1921 Act goes.
  The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I am grateful to noble Lords who have given me the benefit of their views, not least in the exchange between the noble Viscount, Lord Goschen, and the noble and learned Lord, Lord Fraser, about the terms of reference, which I will not address at the moment, because we will have amendments later looking precisely at the issues that both noble Lords feel are important. It would take far too much of the Committee's time to do that now, but they are important issues. I only mention that because they will come up later.
  The noble Lord, Lord Kingsland, began by talking about the two shifts that concern him, from Parliament to the Executive and from chairmen to Ministers. I will try to address some of the issues that have been raised in that context. We have had three different parts of the debate: one about the role of
  GC 202
  Parliament; the other about the relationship between the Chairman and the Minister, which will come up in later amendments; and one about the specific issues surrounding ministerial misconduct.
  Let me begin my remarks by making it absolutely clear what the 1921 Act does and does not do. There were quite a number of misconceptions about that in what noble Lords said. I hope that once I have explained it, it will lead people in the direction of the noble and learned Lord, Lord Fraser, in saying that the Act should not continue.
  Lord Ackner: Can I be forgiven for saying that we are having some difficulty in hearing at this end of the Room? The acoustics in this Room are terrible. Will the Minister bear that in mind?
  Baroness Ashton of Upholland: I certainly will bear it in mind, although I do not have the faintest idea what to do about it, other than to turn the volume up. Should I try to move the microphone nearer to me?
  Lord Ackner: Yes, that would be an advantage.
  Baroness Ashton of Upholland: I will go with that, although if I put it on my notes, I cannot possibly see what I have to say. This shall be a novelty. This is my first day in the Moses Room. My Bills are normally so controversial that they must be debated on the Floor of the House.
  I was describing three debates, and the third is about ministerial misconduct. I was talking about what the 1921 Act does and does not do. Crucially, it does not give Parliament a power to set up a statutory inquiry. A Back-Bencher could not use the 1921 Act to do that. It says that where parliamentary resolutions are passed, and an inquiry is appointed by the Secretary of State or the monarch, the inquiry can be given the powers and privileges of the 1921 Act. My submission is initially therefore that preserving the Act does not achieve what Members of the Committee seek to achieve, in terms of either the involvement of Parliament or the ambitions in other ways.
  Frankly, the provision does not oblige the Secretary of State to do anything other than—as the noble and learned Lord, Lord Howe, described—in moral pressure, what is right and proper in times of great concern. He mentioned Bloody Sunday and Aberfan as two such instances. It is also true that many other inquiries born of terrible tragedies, not least that chaired by the noble Lord, Lord Laming, into the death of Victoria Climbie, were not set up under that Act. We must take away the misconception that the Bill is replacing something that was better. It was not. It would not have done what Members of the Committee believe that it would have done.
  As I indicated at Second Reading, a lot of other legislation has grown up over the years that has overtaken the 1921 Act, which is used very rarely. We talked about the 30 inquiries that have taken place over the past 14 or 15 years, of which only four were set up under the 1921 Act. Some inquiries—again, the Climbie inquiry is an example—were set up using more than one Act. The purpose that lies behind the Bill.

  GC 203
  above everything else is to simplify a very complicated existing framework, and to create a single effective framework. What we are setting out to achieve will not only do the job of the 1921 Act, but—in relation to some issues to do with the choosing of a panel or with costs—do so in a more effective way.
  The powers and privileges given to inquiries under the 1921 Act are all available in some comparable form to inquiries under the Bill. The only notable difference—it deals with the question—is around resolutions in Parliament. I indicated that those resolutions do not do what Members of the Committee thought that they might. I undertook at Second Reading, and shall be interested during Committee, to listen very carefully to noble Lords. I want to consider further ways to strengthen parliamentary involvement in the process, and look forward to debates in Committee on that. I make a commitment to consider that very carefully. I have heard the strength of feeling and recognise what Members of the Committee are saying to me.
  My first submission is that the 1921 Act should go because it does not do what the Committee is looking for. I commit to considering that the critical point about the role of Parliament be looked at again, both in Committee and beyond.
  With Amendments Nos. 1 and 2, the noble Lord, Lord Kingsland, was trying to retain the procedure on the misconduct of a government department or Minister. I hope that he will accept that it would not do what he wanted. As I said, the 1921 Act does not do what Members of the Committee want it to do, so we would not be giving additional powers to Parliament or Ministers. It would only allow some inquiries to carry on as they were before. That would be less effective than the way that we are considering for the future.
  Lord Kingsland: If the Minister is right about that, how will we investigate ministerial misconduct? Clearly the procedures in the Bill do not help us, because those are initiated by Ministers. A Minister is highly unlikely to initiate a procedure to investigate himself; and most unlikely to initiate a procedure to investigate his Cabinet colleagues. Where is the procedure in the Bill, in terms of both initiation and substance, that will enable the country to investigate ministerial misdemeanours?
  Baroness Ashton of Upholland: I shall address the points but, so far as this Government are concerned, if there have been any allegations of misconduct, inquiries of one kind or another have been undertaken. The noble Lord may not like them or their outcome; none the less, the Government have striven to make sure that there is proper conduct by Ministers. Nothing in the Bill prevents Parliament wishing to introduce additional procedures if it so wished.
  If I might, I will continue with the issues around what the noble Lord is proposing. The noble Lord, Lord Kingsland, can then consider whether he wants to propose alternative suggestions or proposals, or pursue those that he has. The purpose of this Bill,
  GC 204
  which is set out clearly in Clause I, which comes from the 1921 Act background, is to allow inquiries into events. Events are different to issues. It is specifically designed to look at what might happen and to investigate how best we ensure that we gain public confidence that those events could not happen again. It is possible that in the work of an inquiry that along the way one might discover misconduct by a person, a department or a Minister, but we should not prejudge it.
  One of the issues with what the noble Lord, Lord Kingsland, seeks to do in his submission to the Committee is quite difficult, because if one looks at some of the big inquiries that have taken place, it is difficult on occasion to say that a department has been guilty of misconduct, but it is possible that that conclusion might be reached in the course of an inquiry. It is important that noble Lords are aware that the purpose of an inquiry is to look at the event and to look at the process that led to the event, and not to assume that the event is around misconduct. That is important in this context.
  It is also difficult, when one looks at the events, to consider what might be misconduct. It might be by omission, perhaps by not giving an organisation or agency funded by the department sufficient resources. Is that misconduct by omission? Also, looking at some of the issues that have arisen, for example, around foot-and-mouth disease or BSE, it is important that we do not prejudge. There is a question mark generally around inquiries into events about whether one is able to distinguish at the outset that the issue is about misconduct. Most times that is not possible at the outset. Very often, the circumstances might not fall into that.
  Noble Lords have talked about the processes available and how Parliament operates. I agree with much of what has been said in Committee today about the proposal put forward by the noble Lord, Lord Kingsland, about the use of Cross-Benchers. With the best will in the world, and with all respect to our noble and very eminent Cross-Benchers, this is not the role for them. They play an important part in the legislative life of Parliament and in enforcing and enhancing our debates. It is not their role to be put in a position of cross-examining and determining the conduct of elected Ministers in another place.
  This morning, I appeared before a Select Committee, so my view of Select Committees is substantially different to all those that have been put forward thus far. As a Minister, appearing before a Select Committee is one of the most important and critical things that I undertake, and I do so with enormous gravity. I work very hard; it is like doing a PhD on your feet. I feel extraordinarily held to account by the Select Committee process. I am mindful—I have appeared twice before this Select Committee and several times before others—and I wait with bated breath for their reports on whether I am able to do my job as efficiently and effectively as I might.
  I put a plea in to noble Lords who perhaps have not appeared before a Select Committee recently, or ever, that Ministers take the work of the Select Committees

  GC 205
  incredibly seriously. They do, as I understand it, have powers equivalent to those of the US Senate. The noble Lord, Lord Kingsland, feels passionately about the issue of misconduct, and it is important to remember that procedures are in place already that could be invoked if Parliament so chose.
  Other noble Lords have talked about trying to get parliamentary resolution in both Houses on misconduct issues. The noble and learned Lord, Lord Fraser, is not cynical; I think he is accurate that there is an inevitability about the Government of the day having a majority in the House of Commons, but not, certainly in this Government's case, in the House of Lords. I am not sure where that takes us in terms of a rational and sensible way to approach this. One looks at the code of conduct for Ministers, and all the issues around how Ministers are expected to behave, which is taken seriously. The confidence of the Prime Minister and the country are important and are not to be considered lightly.
  4.30 p.m.
  As I have indicated, within this Bill there is nothing to stop Parliament, if it so wished, looking at additional procedures. The noble Lord, Lord Kingsland, put forward an interesting idea. I think it is unworkable but that is not to say I do not understand the point that the noble Lord seeks to reach.
  I touch on Amendments Nos. 3,65 and 66. As I have already indicated, there is an issue about the role of Parliament. I indicated why we think the 1921 Act does not achieve what noble Lords would hope it did. I hope that noble Lords, in thinking about this, will be mindful of what I have already indicated about the role of Parliament. I hope that, as we continue to debate the Bill today and tomorrow, we have the opportunity to think through how that might operate to ensure that those issues are effectively dealt with.
  On the issue of ministerial misconduct, the Bill is concerned with events and, in looking at events, one cannot necessarily indicate at the beginning that ministerial or government departmental misconduct is involved, although that might emerge in the course of an inquiry. I am reconciled to considering what the parliamentary issues might be. It is for Parliament to consider whether additional procedures are needed. However, with the greatest respect to the noble Lord, Lord Kingsland, I urge great caution regarding the proposals that have been put forward thus far. I hope that on that basis the noble Lord will feel able to withdraw the amendment.
  Lord Laming: Is the noble Baroness willing to say a little more about not the detail but the principle of the ministerial code, because I am rather disturbed by the use of the phrase "ministerial misconduct"? It seems to me that inquiries are established to examine either the validity or the reasonableness of decisions or actions taken. They are not established to impose disciplinary standards on individuals, be they in government, local authorities, the National Health Service or any other body. Those matters must be dealt with through
  GC 206
  proper disciplinary procedures that are designed to deal with them. I have always assumed that in respect of Ministers there is a rather precise ministerial code, and that misconduct in the general use of the word would not be dealt with in an inquiry but by Parliament. If I am right in that—and I hope that I am—it is very important that we are clear what is the distinctive role of an inquiry and what are the proper procedures for dealing with all other matters, including matters that I generally assume constitute misconduct.
  Baroness Ashton of Upholland: I do not have a copy of the ministerial code to hand but I can tell the noble Lord, Lord Laming, that it sets out the standards that the Prime Minister expects his Ministers to uphold. The Prime Minister remains the ultimate judge of behaviour and any breach of those standards. I believe that resolutions were introduced in March 1997 under the previous administration, which are reproduced on the first page of the code, and which make clear that the constitutional position is that Ministers stay in office as long as they retain the confidence of the Prime Minister, and that Ministers have a duty to be accountable to Parliament. There is no suggestion in that resolution that Parliament should inquire into, or investigate, ministerial behaviour in any structured way akin to an inquiry. The code was set out to do what I hope it does very well.
  Lord Kingsland: I would like to thank the Minister for her very full and, if I may say so, frank response to what not only I had the privilege of saying but what many noble Lords said. I think the noble Baroness very fairly accepted that the contents of the Bill are not intended to deal with the issue of ministerial misdemeanour. The noble Baroness quite rightly said that, in the course of an investigation under the Bill, issues about ministerial misdemeanour or departmental negligence might arise, but that would not be the primary target that was aimed at by the inquiry.
  In that sense I respectfully suggest to the Minister that the Bill is a step back from the current situation. Whatever the defects of the 1921 Act, it seeks to and is capable of dealing with ministerial misdemeanours or departmental negligence. So something that is currently in our legislation and which assists us in dealing with that constitutional problem is going to be taken away.
  The Minister very fairly said that there is nothing to stop Parliament setting up its own procedures to investigate ministerial conduct. In effect, she is saying, "We are removing the 1921 Act from the statute book but there is nothing to prevent your Lordships' House or another place setting up a series of procedures to substitute for it". That is essentially the message.
  I have two responses to that suggestion. First, if that is the case, surely it would be an important function of the procedure under the Bill for noble Lords in Committee, on Report and at Third Reading to consider what parliamentary procedures should be set up to replace the 1921 Act—because a constitutional gap has now emerged. The essence of ministerial responsibility in a democratic society is accountability

  GC 207
  to Parliament. I have suggested one approach to the problem—that is, reviving the parliamentary Select Committee, which I call an "investigatory committee", shaped along the lines of the investigations that are most successfully conducted in the United States Senate.
  It has been put to me that the House of Commons would not wear your Lordships House conducting such investigations. It is, of course, plain that another place cannot conduct the investigations itself because we all know that whatever committee was set up would divide on party lines. That was the disease for which the remedy was the 1921 Act. If Ministers are ultimately accountable to Parliament, and another place is incapable of conducting investigations that enforce ministerial accountability, surely the only other forum for conducting those investigations is your Lordships House.
  It was put to me, most notably by the noble Lord, Lord Borrie, that such a proposal would be deeply resented by another place. I say to him, in turn, that it would be very dog-in-the-manger of another place, not being able to conduct the investigations itself—because we know that Members would divide on party lines—not to allow your Lordships House to conduct them simply because this House is one with which another place feels in some way in competition. If the House of Commons cannot conduct these investigations, yet it is desirable to make Ministers accountable to Parliament, surely it must follow that the only arm of Parliament that can conduct the investigations is your Lordships House.
  It occurred to me, while I was listening to the many splendid speeches delivered by Members of the Committee in the course of the debate on this first amendment, that one compromise approach might be to have a joint investigatory committee with another place, on which there was one Member representing each of the three political strains in another place, but with an equal number of Cross-Benchers from your Lordships House. That way another place would be involved in the investigation but the party political element would not have a dominant role. I have not thought that through; it may well have other flaws. But it would at least seek to grapple with the issue that seemed to be troubling the noble Lord, Lord Borrie.
  At all events, in my submission, it would be grossly negligent—knowing that the Tribunals of Inquiry (Evidence) Act 1921 was being removed from the statute book, thereby eliminating the one power that Parliament has to control the conduct of Ministers in respect of particular decisions that they have taken which are alleged to amount to misconduct—wrong, and a derogation from the responsibilities of all Members of the Committee, not to grapple with this issue and try to find a more successful procedure than the 1921 Act as a way of dealing with this important constitutional problem.
  Lord Borrie: Before the noble Lord sits down, will he respond to this point? He has made a major assumption, which I do not fully understand, that the 1921 Act enabled the inquiry to go into matters of
  GC 208
  misbehaviour, misdemeanour and misconduct, or whatever you like to call it, and the new inquiry under the Bill would not.
  Surely there is no difference on that score between the way in which the old tribunals of inquiry operated and how the present inquiries are likely to operate so far as examining events, looking into facts and investigating to discover the true facts. I say with respect to the Minister that I think that she indicated that of course a matter of misconduct might emerge, but the inquiry is not into the misconduct, nor was it under the old Tribunals of Inquiry (Evidence) Act. I am sorry—I am being premature in calling it the old Act, but I mean the one that is meant to be replaced by this Bill.
  The noble Lord, Lord Kingsland, has made a major assumption in the speech that he is just concluding that there is some difference on the score of investigating ministerial misconduct between the tribunals of inquiry Act and the present Bill.
  Lord Kingsland: I am not saying that the 1921 Act was necessarily a good vehicle for investigating ministerial misconduct. But it was certainly a vehicle capable of investigating ministerial misconduct.
  Baroness Ashton of Upholland: I am sorry to interrupt the noble Lord, but so is this Bill: there is no constitutional difference between the provisions. The wording in the 1921 Act is,
  "inquiring into a definite matter",
  while the wording of this Bill is, "inquiring into events". There is no constitutional change. In reality, the 1921 Act has not been used. Certainly, for considerable time we cannot find any evidence of it to look at ministerial misconduct. That could be so for this Bill, too. There is no change.
  Lord Kingsland: My response to that is twofold. First, I had thought, in an earlier reply to me, that the Minister had accepted that this Bill was not an appropriate vehicle to investigate ministerial misconduct. Secondly, it is quite clear that if she were to glance at the debates that took place in Parliament between the conclusion of the proceedings of the Marconi committee and the 1921 tribunal, she would conclude that the Tribunals of Inquiry (Evidence) Act 1921 was intended as a substitute procedure for the procedure that was previously used in parliamentary Select Committees. So, with respect to the noble Baroness, I do not accept that the two are on all fours with each other.
  It may be that my concerns about this are not widely shared in your Lordships House. But if they are not, it seems to me that your Lordships would rest content with a situation where inquiries into ministerial demeanours, that go to the heart of government, are subject simply to the prerogative decision of the Prime Minister of the day who sets up an inquiry which seems to him to best suit the political circumstances. These are bespoke inquiries. They do not respect any statutory or parliamentary procedure. The chairman is named, certain powers are created and the chairman gets on with what he has to get on with under those

  GC 209
  powers. In my submission, to leave the way in which a Minister is made accountable to Parliament solely to the prerogative powers of the Prime Minister of the day is wholly wrong. I am seeking a parliamentary substitute for that procedure. In the end, it may be impossible to find such a procedure under our constitution but I would be shaken if I thought that your Lordships were not prepared to seek it. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 2 not moved.]
  Clause 1 agreed to.
  [Amendment No. 3 not moved.]
  Clause 2 agreed to.
  Clause 3 [The inquiry panel]:
  4.45 p.m.
  Lord Howe of Aberavon Lord Howe of Aberavon moved Amendment No. 4:
  Page 2, line 3, leave out paragraphs (a) and (b) and insert—

  "(a) by a chairman with one or more other members, or

  (b) by a chairman alone.

  ( ) In deciding whether or not an inquiry can acceptably be conducted by a chairman alone, the Minister must have regard to the considerations specified in section 7."
  The noble and learned Lord said: This is one of three amendments that are grouped together. As Committee Members will see, they are all directed to the same central purpose. Basically, the objective is that the establishment of an inquiry with a chairman sitting on his own should be the exception rather than the rule. For the most part, an inquiry should include wingmen, as they are called—or wingwomen, for that matter— or assessors, or in certain cases both. Amendment No. 4 refers to the criteria already spelt out in relation to assessors in Clause 7, which is a convenient way of combining those two purposes, but it could be supplemented by Amendments Nos. 5 or 6, if necessary.
  It may also be helpful if I explain the relationship between the three areas in which I have so far designed appraisals or amendments to the Bill. This group is in relation to Clause 3. An amendment to Clause 10 relates to the control of expenditure and one to Clause 16 relates to the right to legal representations. All three are concerned with the four objectives of an inquiry of the kind that we are discussing, which were well spelt out in the report produced by the Council on Tribunals in 1996 in response to the invitation by the then Lord Chancellor, my noble and learned friend Lord Mackay of Clashfern.
  I expect that your Lordships are familiar with that report. It was referred to by the noble and learned Lord, Lord Mackay, when he presented it to Parliament as "authoritative advice" and it spelt out in paragraphs 2.3 to 2.8 the four factors with which inquires of this kind are concerned. I hesitate to conclude in that phrase the balance between those factors, because they do not necessarily compete with each other. The four factors are effectiveness, fairness, speed and economy. Ideally, they should really all
  GC 210
  march together although there is bound to be some relationship between them. The most important sentence from that report of Council on Tribunals is in paragraph 2.9. It states:
  "The objectives of effectiveness and fairness should not, as a matter of principle, be sacrificed to the interests of speed and economy".
  This group of amendments is concerned in that general context with the risks that are inherent in having a solo appointment of the chairman alone. I certainly do not say that a solo chairman is bound to go wrong or is bound, in all circumstances, to be the wrong answer. However, to have an inquiry with a chairman on his own is bound to involve a risk-taking element and shortcomings are more likely with only one head than if there were two or three heads conducting the inquiry in partnership.
  Certainly, some solo inquiries have survived public scrutiny. One can think of one or two inquiries conducted in years gone by by Lord Scarman and more recently by the noble and learned Lord, Lord Cullen. Both were judges with very wide experience before they embarked on inquiries. On the other hand, some inquiries have attracted, for whatever reason, controversy of a kind that I do not like. I do not relish the idea of inquiries being the subject of slamming front page headlines because there can be nothing worse for the conductor of the inquiry than that, nothing worse for the judiciary who have committed themselves to their task and nothing worse for the balance of authority in our society. Of those that have attracted that reaction, most if not all have been solo inquiries.
  I hope that I may be forgiven for offering two or three examples. The first that I cite was the inquiry under the chairmanship of the late Lord Widgery into the original Bloody Sunday disaster. In retrospect, that inquiry had an air of panic about it. As I have already said, the shooting took place on 30 January and the appointment was made only two days later. The sittings ran through to the 21 February. The report was signed on 10 April and published on 18 April. So, in 11 weeks and 17 sitting days, 114 witnesses were examined with only three teams of counsel representing them. Although one can have a great deal of sympathy with the task that faced Lord Widgery and a great deal of understanding of the difficulties that he may have faced, the sense of urgency may have overwhelmed the inquiry and certainly led to an unsatisfactory outcome.
  Then I must refer to the inquiry—in which I took a somewhat self-assertive role in criticising—under our colleague, the noble and learned Lord, Lord Scott. One could hardly say that that noble and learned Lord was out of touch with a broad range of opinion. He was a former chairman of the Bar Council and notable huntsman, which brings one in contact with humanity of a different kind from the Bar Council. However, for whatever reason, he was left to make his own choice of the procedures followed.
  As I understand it, there was no discussion between him and those who appointed him of the composition of the tribunal nor of the method of the tribunal. Indeed,

  GC 211
  the government of the day deliberately abstained and restricted themselves thereafter from criticising any of the procedure. When a number of us, including the noble Baroness, Lady Symons, led criticisms of his proceedings on behalf of the Association of First Division Civil Servants, the Government declined to take up the cudgels on our behalf. The noble and learned Lord, Lord Scott, was truly on a solo flight from beginning to end.
  It may be that a judge the bulk of whose experience— for all the other qualities of the noble and learned Lord—was focused on the Chancery Division, would have had less of an intuitive feel for the procedures that should have been followed in that case. He did admit at some point in the inquiry—I cannot remember when— that he felt that his introduction to the procedures of government had been his exposure in the course of the inquiry. That led the one-time noble parliamentarian Anthony Wedgwood Benn—Tony Benn, as he was then known—to express the view, when the Scott report was debated in the Commons, that it was entirely wrong that such political matters should be entrusted to a judge who knew nothing about administration.
  I hope that the noble and learned Lord, Lord Scott, will forgive me for resurrecting the criticisms that I have launched at him in our friendly exchanges over the years, but they are important to understand. That was an example where the chairman could and should have been helped by wingmen and/or by assessors.
  The third example—another that I regret having to raise in today's company—is that presided over much more recently by the noble and learned Lord, Lord Hutton. Again, I think I am right in saying that in evidence to the Public Administration Committee, either he or the noble and learned Lord, Lord Falconer, said that there was no discussion at the outset of the desirability of wingmen. It was another case where, for all the meticulous care with which the noble and learned Lord, Lord Hutton, conducted the proceedings, the formation of judgments may have been easier had he had the benefit of advice from others.
  At a very humble level, I am reminded, going back years, of my experience sitting as a chairman or deputy chairman of Glamorgan quarter sessions. With limited experience in the criminal courts compared to my civil practice, sitting in the appeals committee there I benefited enormously, even on the simplest cases, from the presence of justices of the peace other than myself. Another area in which that general point has been well illustrated is in the composition of what was the National Industrial Relations Court and became the Employment Appeal Tribunal. Again, by definition, the chairman of the court has wingmen drawn from— in the old-fashioned phrase—both sides of industry to help and advise him.
  By contrast in the wider area about which we are talking, where there has been little, if any, criticism, I cite the formidable Aberfan inquiry. I appeared before it, and it was conducted by the late Lord Edmund-Davies. He had the benefit of having a former clerk of Monmouthshire County Council to steer him on governmental matters, and also a very well qualified civil
  GC 212
  engineer. He went out of his way more than once to praise the input that they made to his proceedings. Again at the risk of immodesty, the Ely hospital inquiry, which I conducted in 1967 and 1968, was a relatively modest affair, although it had surprisingly significant consequences. I should have been completely lost without the presence alongside me of a member of the regional hospital board, a consultant psychiatrist: and a very senior former nurse.
  "BCCI" is a set of initials to daunt anyone except the noble and learned Lord, Lord Bingham, who had the pleasure of conducting the BCCI inquiry—completing it within 12 months, incidentally. He had an accountant and a banker as assessors, and paid tribute to them most warmly. The much more recent example under the noble and learned Lord, Lord Phillips, was into BSE. He had the benefit of the presence of a retired senior civil servant, June Bridgman, and a geneticist, Mr Malcolm Smith.
  If one draws all that together, the most important general consideration of the broad question, apart from documents from the department itself, was the post-Scott post-mortem of all the procedural questions by the Council on Tribunals, whose report I have already cited. At paragraph 5.16 of that report, it had this to say:
  "Wing members can provide a breadth of experience which can be brought to bear on the subject matter of the inquiry. They can also enhance public confidence in the fairness of the process and in the inquiry's conclusions. They can afford the inquiry chairman helpful support and some protection against errors of judgment, in matters of both substance and procedure … As discussed in paragraph 5.2 above, if the inquiry involves consideration of broad policy issues, a spread of expertise will almost always be desirable".
  That is most clearly evidenced by the words of one of the former judicial chairmen. The noble and learned Lord, Lord Bingham, spoke about the value of his assessors in the BCCI inquiry. He expressed the benefit of,
  "drawing on their experience and expertise. They have contributed invaluable insights and guidance".
  But, almost more importantly, he said:
  "I have also found their judgments on more mundane factual issues consistently shrewd and realistic.
  It is important to appreciate that it is not simply expertise that I was looking for; it is the availability of two additional minds to supplement one's own judgment.
  5 p.m.
  I come back again to my experience in the Ely Hospital inquiry. The character of a large number of people was under scrutiny there. A number of councillors came before us and two trade union officials on behalf of some of the members. Apart from the benefit of the advice that I received from my wingmen—or my two wingwomen and one wingman—I followed the procedure of convening two or three times during the proceedings, over an informal buffet supper, the representatives who were appearing before me and discussing with them how we were getting on. I would ask them whether they would agree that certain issues

  GC 213
  could be set to one side and whether we could agree on certain premises at the next stage. This informality, drawing on the advice not just of those who were sitting alongside me, but also of those who were sitting in front of me, enabled us to complete the inquiry in two or three sitting weeks. There was a very large number of differences.
  My own feeling—I have often been criticised for having too collegiate a style of government—is that I do not apologise for collegiality. Wisdom is often to be derived from seeking the advice of other people openly and publicly in that way.
  It is interesting that these arguments are specifically recognised in Clause 7. Subsection 1(a) states that in considering whether assessors are necessary, the Minister must have regard,
  "to the need to ensure that the inquiry panel … has the necessary expertise".
  Subsection 1(b) states that he should have regard also to,
  "the need for balance … in the composition of the panel".
  Both are important and must be taken into account in deciding on the composition of the panel. It is for those reasons that the composition of the panel deserves to reflect the factors that I have been emphasising at least as much as the availability of assessors.
  I would like to say a word at this stage on one related topic; that is, the question, which was raised at Second Reading, whether judges can properly or sensibly be drawn on to undertake these tasks. It will be considered later in these proceedings. One should not forget the alternative, which the Council on Tribunals discusses specifically, of the availability of "an eminent senior lawyer" or,
  "an eminent non-lawyer of manifest independence and integrity".
  There are advantages in that. One that is increasingly recognised is that it avoids the risk of our judiciary, particularly our senior judiciary, being devalued or even contaminated—if that is not too offensive a word—by its apparent involvement, for all its best endeavours, in extremely difficult political issues. It leaves open the question where one is to get the legally qualified judicial figure to preside over these matters, if one is not to go to the judiciary, but I have already referred to examples. The noble Lord, Lord Laming, is nodding his head modestly enough. Exemple gratia there he sits.
  Lord Laming: I apologise. I was nodding my head about senior lawyers, not about me.
  Lord Howe of Aberavon: Let me nod for the noble Lord. He is an eminent non-lawyer of manifest independence and integrity, which is the alternative.
  There is one other aspect of going for the senior lawyer rather than the judge, which has only recently been occurring to me; that is—and this is a rather impertinent observation—it may relate to the importance the inquiry attaches to the avoidance of undue cost. I mentioned this at Second Reading in rather a frivolous fashion when I talked about Mr
  GC 214
  Jenkin Jones, of great fame from long ago. If a senior lawyer is engaged for one of these tasks, at least in my day, he is paid on a per diem basis. In those days, it was a modest per diem basis. He has to fight very hard to receive additional payment for the time in which he has to write his report. He knows also that the longer he sits locked up in Ely Hospital, or wherever the inquiry may be taking place, the faster his regular clients are forgetting about him. So he has a financial incentive and a professional incentive to proceed with as much speed as he can. He also has the opportunity of proving his judicial worth if he gets it right. So there are real attractions from the point of view of effectiveness and economy, leave aside the high quality of the lawyer involved, in going outside the judiciary.
  I have said enough about the central purpose behind my amendment. I just remind your Lordships of that crucial sentence from the report of the Council on Tribunals in paragraph 2.9. It states:
  "The objectives of effectiveness and fairness should not, as a matter of principle, be sacrificed in the interests of speed and economy".
  I beg to move.
  Lord Borrie: I was pausing to see whether the noble Lord, Lord Goodhart, or the noble Lord, Lord Smith of Clifton, was going to speak.
  A Noble Lord: Or the noble and learned Lord, Lord Hutton.
  Lord Borrie: There may be others, of course, nearby who will speak. They may not be in my observation. I may as well continue with what I was going to say. I have a strong belief that all the points that the noble and learned Lord, Lord Howe of Aberavon, has made are well justified. It is pretty well accepted in the legal profession that both practice and study of those who have practised indicate that a chairman plus, to use the same phrase as the noble and learned Lord, two "wingmen" are most helpful in the exchange of views. The fact that one has someone with whom one can discuss things before coming to firm conclusions, and all kinds of other reasons, suggest that that is the better composition as a general rule.
  It is, however, a general rule. I would accept that there have been instances, and that there will be instances, where the appointment of a single person is sufficient. I am not sure that the amendments of the noble and learned Lord get us very far. I thought that perhaps a psychologist had drafted Amendment No. 4, because it contains exactly the same words except in a different order. Perhaps, psychologically, if one puts "chairman with one or more other members" before "chairman alone", one starts to consider the first possibility rather than the second and there is a greater chance of the conclusion being the first possibility; that is, the chairman being appointed with one or other members.
  Amendment No. 4 states:
  "In deciding whether or not an inquiry can acceptably be conducted by a chairman alone, the Minister must have regard to the considerations specified in section 7".

  GC 215
  I am not sure that that adds very much because Clause 3(2) tells us that:
  "References in this Act to an inquiry panel are to the chairman and any other member or members".
  It seems that the appointing Minister will already consider those matters in Clause 7 in determining whether there should be a chairman or a chairman sitting with other members.
  Amendment No. 6 states that,
  "special attention must be paid to the need for the appointment of one or more assessors, as specified in section 10".
  That seems to be unexceptional, but I should have thought that it may be possible for the Minister to reply that attention would be paid to that. Whether "special" adds anything, I do not know.
  Where there is a difference with the Bill is in Amendment No. 5, which states that "there shall be a presumption". I find the use of the word "presumption" there, which cannot be a presumption in law—I do not know quite what it is—rather curious. I do not know whether there are any precedents for the word "presumption" being used in such a way. How it makes more definitive the choice being in favour of a chairman and members rather than just the chairman alone, I am not sure. Clearly, as and when Clause 3 becomes law—let us suppose that it is as it stands—as usual, what the Minister says in explanation of the clause and what she will say in few moments time will be part of the background to what Ministers will in future do under Clause 3.I very much doubt, and I find it a little odd to put into statutory provision, something like Amendment No. 5.
  Those are merely detailed and trivial points because I accept that all the principled and practical points that the noble and learned Lord has made in favour of a chairman being appointed together with one or other members are very persuasive indeed. I would hope that they would be persuasive to any Minister, except in a rare instance, in future.
  Lord Howe of Aberavon: I am grateful to the noble Lord for letting me intervene because I appreciate his comments very much. I am, in this area, a novice. It is a very long time indeed since I attempted to draft an amendment to a Bill, let alone a Bill, and he is a much wiser man in that respect. If he is saying that he supports the case that I have made, but that he can certainly express it more elegantly, forcefully and effectively, I would be only too glad to accept his improvements and advice. We both would like to hear the Minister saying that my ideas and his language together make a marvellously harmonious proposition that she would like to accept.
  Lord Fraser of Carmyllie: I rise briefly in support of the amendment that my noble friend has put forward. I think it is perfectly obvious what "presumption" means in this context. It means that Parliament expects you to appoint a chairman and two other persons and if the Minister fails to do that, he will have to explain why. It is as simple as that. I do not find it difficult at all and it seems to be desirable. As the Minister knows, there are other points later in the Bill, where I think
  GC 216
  that we should comparably introduce the idea that Parliament is indicating to Ministers who are setting up inquiries that there is a series of presumptions. They do not have to follow them. If they do not like them or if they are not apposite for the circumstances, they need not follow them through. However, they will be under an obligation to explain. That seems to be a perfectly desirable public objective that Parliament should follow through.
  My other point is rather more trivial and I would be grateful if the Minister could answer it. Can you be chairman of one? I can see how you can be a chairman of a body. If there are three of you, one of you is chairman, but if you are sitting alone, are you the chairman? I have some difficulty with that idea. I shall pose that question to the Minister.
  Baroness Ashton of Upholland: If I can help the noble and learned Lord, I will try. You are chairman of the inquiry.
  Lord Laming: The noble Lord, Lord Borrie, expressed himself so splendidly that there is nothing that I can add. However, I was provoked by the comment of the noble and learned Lord, Lord Fraser, in that we are trying to achieve a piece of legislation which will cover a wide range of possibilities where it might be considered that an inquiry should be established. Whereas I agree with the thrust of the comments of the noble and learned Lord, Lord Howe, especially about the collegiate approach, it is not appropriate to put on the face of the Bill a presumption. I do not think that Ministers should have to explain to Parliament why one kind of arrangement is chosen as opposed to another. Ministers have to explain to Parliament why there is to be an inquiry, what the terms of reference will be and by whom it will be conducted. It is for Parliament and everyone else to determine whether that has a sense of logic and credibility about it.
  I do not think that it is right to put in legislation that there should be a presumption of one pattern or another. We should create a situation where there is scope for all possibilities to be relevant to a particular issue, although I very much support the thrust of the contribution made by the noble and learned Lord, Lord Howe.
  5.15 p.m.
  Lord Hutton: I have no doubt that there are inquiries where it is desirable that a chairman should not sit alone, but that there should be additional members of the panel, or that if there is a chairman sitting alone he should be assisted by assessors.
  But because the noble and learned Lord, Lord Howe of Aberavon, supported this amendment by reference to the inquiry that I conducted into the death of Dr David Kelly, I would like to make a number of brief observations about that inquiry in so far as it bears on the matters that have been discussed in relation to this amendment.
  The discovery of the body of Dr Kelly gave rise to wide public concern. My terms of reference, which appeared to me to be appropriate, were urgently to

  GC 217
  conduct an investigation into the circumstances surrounding his death. It appeared to me also that there were three primary questions that I should address in the course of that inquiry. First, how did Dr Kelly meet his death? Did he take his own life or had third persons intervened in causing the death? That was a question which it seemed to me was an entirely appropriate one for a chairman with legal experience to decide.
  The report that set in train the chain of events which led to Dr Kelly coming into the public eye and subjected him to strains and pressures was the report in the BBC Today programme that the Government probably knew that the 45-minutes claim in the dossier in relation to weapons of mass destruction was wrong. That was a very grave allegation and because of the consequences of that report for Dr Kelly, I considered that I should deal with that issue in my report, and a great deal of evidence was given in relation to it.
  The question whether the Government knew that the intelligence was wrong was one that I also considered a single judge could properly decide. I was given express and specific evidence by Sir Richard Dearlove, the chief of the Secret Intelligence Service, that the report in relation to the readiness of weapons of mass destruction within 45 minutes was a piece of intelligence coming from an established and reliable source.
  In addition, not only Mr John Scarlett, but also the chief of the Defence Intelligence Staff, Sir Joe French, the deputy chief of the Defence Intelligence Staff, Mr Tony Cragge, and Sir David Omand, the security adviser at No. 10, all gave evidence to me that the Joint Intelligence Committee gave its approval to the 45-minutes claim set out in the dossier.
  I therefore decided that the allegation that the Government knew that the 45-minutes claim was wrong was unfounded. In the light of that strong evidence from the leading figures in the intelligence world, I consider that even if other members had been sitting with me on the panel or if I had had assessors, I would have been advised that the conclusion should have been the same. That was a finding also supported by the committee chaired by the noble Lord, Lord Butler, when it later sat. It also came to the same conclusion that the Government had not advanced a claim which it knew to be false.
  There is of course a further question that is of very great importance; that is, whether the intelligence supplied to the Government by the intelligence services was flawed and unreliable, whether it was overstated or whether caveats were omitted. At the commencement of my report, I recognised in express terms that this was a very important question, but I made it clear that it did not fall within my terms of reference.
  I considered that it would have been quite inappropriate for a single judge without experience in intelligence matters to embark on such a question because, among other reasons, it would have greatly extended the length of my inquiry. I was concerned to
  GC 218
  report urgently to quieten public concerns about how Dr Kelly had met his death. Such an inquiry by me would also have involved me sitting in private, which was something that I did not wish to do. I was anxious that all the evidence relating to Dr Kelly's death should be given in public and that all the documents should be made available to the public, as they were.
  The committee chaired by the noble Lord. Lord Butler, hearing evidence in private and with different and much wider terms of reference directed expressly to the reliability of the intelligence, considered such questions. It was entirely right that his committee should have done so. But it also seems to me that in the very unusual circumstances relating to Dr Kelly's death, it was in no way inappropriate that a judge sitting in public should consider the issues relating to Dr Kelly's death and that a committee of Privy Counsellors, hearing evidence in private, as they had to do in relation to intelligence matters, should consider the vitally important issue of the reliability of the intelligence that was provided to the Government.
  The third important question that I considered should be dealt with in the inquiry and in my report was whether the Government had embarked on an underhand and dishonourable strategy to leak covertly Dr Kelly's name to the media, without appearing to do so. Again, I considered that that was a proper question for a single judge to decide. Having heard a large volume of evidence, I came to the clear conclusion that there was no such strategy and that fearing that Dr Kelly's name was about to become public at any time because the press were pursuing constant inquiries as to the identity of Mr Gilligan's source, the Government considered that they had no alternative but to issue a statement that a civil servant had come forward, lest they be charged with a cover-up.
  But I did criticise the Government for failing to take proper steps to help and protect Dr Kelly in the difficult position in which he found himself, although I observed that that criticism was subject to a number of mitigating circumstances.
  My noble and learned friend Lord Howe has referred to critical headlines and to criticism from the media. I fear the reality is that if there is an inquiry into a matter in which some sections of the media hope that there will be a report that will be highly critical of the government, then notwithstanding that the report does not so report on the basis of evidence given to it, there will still be sections of the media that will allege a whitewash. I fear that that is simply a fact of life in this country today. However, that is not a reason why such an inquiry should not be conducted. I also incline to the view that in such inquiries, even if there were a panel of those inquiring into the matter, if the report does not slam the Government in the terms which some media commentators hope for, there will still be allegations of a whitewash. Therefore, I consider that the inquiry, which I conducted within my terms of reference, was a proper one for a single judge, although I fully recognise that there are other reasons that can be advanced in support of this amendment.
  Viscount Bledisloe: It seems to me that the noble and learned Lord, Lord Howe of Aberavon, has made an overwhelming case for the principles for which he has spoken. I have every confidence that because the noble Baroness, Lady Ashton, is the essence of reasonableness and co-operation, she will shortly tell us so and tell us that in due course amendments will come forward to give effect to that.
  That does not mean that reports done by chairmen alone—for example, the report of the noble and learned Lord, Lord Scott, or that of the noble and learned Lord, Lord Hutton—were wrong; it does not begin to mean that. It does perhaps mean that they would have received some lesser degree of media hostility if they had been done by a panel. However, I entirely agree with the point made by the noble and learned Lord that if you do not come up with the answer that the media think will be fun to slam across their papers, you will be slated anyhow, but probably you will be slated slightly less if you have two colleagues. However, I do not think that alters the principle that for matters to be inquired into, as opposed to being adjudged upon by a judge, three is normally better than one.
  Nor do I accept the criticism made by the noble Lord, Lord Borrie, that these amendments are superfluous because the provision is already there. It seems to me that one of the things achieved by the amendments of the noble and learned Lord, Lord Howe, is that the chairman can be appointed or chosen first. He can then be consulted and his views can be taken into account in deciding whether there are to be two wingmen and so on, rather than the whole thing being announced and then appointed—as would currently have to happen under Clause 7—as one would have to have decided whether the chairman was going to sit alone before you could appoint him, as Clause 7 now stands.
  I share some of the slight doubts about the presumption, and am slightly worried that if the Minister gave reasons that were not convincing to someone it might lead to judicial review of the decision not to have two wingmen. However, it seems to me that if, as I hope, the noble Baroness, Lady Ashton, accepts Amendment No. 15, or its principle, there should be a statement about the terms of reference. That would be a suitable place for the Minister to explain why he had not appointed wingmen, if that was his decision, without putting that matter on the face of the statute with the possible risk, as I say, of judicial challenge. However, I very much hope that we are about to hear that these amendments are in principle on the right lines and will be implemented by the Government.
  Baroness Ashton of Upholland: The noble Lord, Lord Laming, was worried about being inhibited by so many lawyers. I am always in danger of being flattered by certain Members of your Lordships' House. I say immediately to the noble Viscount, Lord Bledisloe, that we shall come to Amendment No. 15 but, as I indicated on the previous group of amendments, I am
  GC 220
  interested in the whole question of the involvement of Parliament and the appropriateness of that. Therefore, I look forward to our discussions on that.
  I have learnt the new word "wingmen" or "wingwomen" in the course of my involvement with this Bill. I have to say that I have never heard of the word before. It is extremely exciting to learn new terminology.
  The noble and learned Lord, Lord Howe, in eloquently introducing his amendments, talked about the advice that was given in 1996 to the Lord Chancellor of the day, the noble and learned Lord, Lord Mackay of Clashfern, from the Council on Tribunals in the wake of the Scott inquiry. The recommendations, to which noble Lords have referred, were very important. The advice indicated:
  "The desirability of having wing members will depend to a great extent on the breadth of an inquiry's terms of reference".
  So we are linking those issues, in a sense.
  5.30 p.m.
  We are not going to be as helpful as the noble Viscount, Lord Bledisloe, would like us to be, not because we do not understand the intention of the amendments but because our contention is that within large measure what the amendments intend is already achieved by the Bill. I shall briefly go though the points that have been raised.
  We have drafted Clause 3 to give us the flexibility that we believe is needed to appoint what is appropriate to the events under investigation. As the noble Lord, Lord Laming, and the noble and learned Lord, Lord Hutton, said, very eloquently and vividly in describing their own experiences, in certain circumstances it may be best to appoint a single chairman, notwithstanding what was said in the evidence of the Council on Tribunals about the four points mentioned by the noble and learned Lord, Lord Howe: effectiveness, fairness, speed and economy. Indeed, to address those very points it might be appropriate to have a single chairman operating with experts and assessors to facilitate an outcome with economy, speed, effectiveness and fairness. We believe that it is right to have the flexibility so that a Minister would be able to come forward with a proposal best fitting the circumstances around the event—which may be a tragic event.
  The noble and learned Lord, Lord Howe, referred to Clauses 7 and 8, which require the Minister to consider the balance, expertise and impartiality needed to undertake the inquiry. Whether the Minister chooses to have a panel or appoint a chairman to sit alone, he is obliged by Clause 7 to ensure that the skills and expertise are available to undertake the inquiry. That might be enabled by providing assessors to assist in the course of the work. That is set down in detail in Clause 10.
  I agree with the principle behind Amendment No. 4, but my submission is that we do not need it to achieve what the noble and learned Lord, Lord Howe, seeks to do, as it is already implicit in the obligations stated in

  GC 221
  Clause 7. The Minister must have regard to the consideration of that clause when deciding how many members to appoint and who they should be.
  In Amendment No. 6, the noble and learned Lord rightly highlights the need for "special attention" to the potential assistance that assessors provide to a lone chairman. I agree that that can be very important. But, again, Clauses 7 and 10 already ensure that due attention will be given to the point. There is no point of disagreement between us, but I contend that the provision is already covered in the Bill.
  As the noble and learned Lord said, the role of an assessor will vary depending upon the needs of the panel and the subject matter of the inquiry. However, an assessor does not have any formal powers, nor does he share responsibility for deciding what will go into the inquiry's report. So the Minister would not take assessors into account when considering the balance of the panel, if a panel were chosen in relation to the terms of reference. If the Minister appoints a lone chairman then, under Clause 8, he must be satisfied that the chairman meets the requirements; he cannot meet the requirement for balance by appointing assessors. That is very important. Assessors are there to give necessary skills and experience, and if the chairman needs additional expertise, he can acquire it by appointing assessors.
  Notwithstanding what the noble and learned Lord and other noble Lords have said, there is an issue about the presumption, to which the noble Viscount, Lord Bledisloe, alluded. Three might be better than one, but so might four or five; there is an issue about the presumptions that are made when inquiries are set up, and the implications that might lead on from them.
  We have had outstanding contributions, not least from the noble and learned Lords, Lord Hutton and Lord Cullen, Dame Janet Smith and the noble Lord, Lord Laming—not all of whom are lawyers—with regard to sitting alone to conduct inquiries. I believe that they demonstrate that in the correct circumstances a single chairman, appropriately supported, can run a very effective inquiry. My nervousness about the presumption comes from the fact that if you move away from that presumption, you risk public confidence—and public confidence in inquiries is crucial. It is perhaps the biggest driver of an inquiry, and it is certainly not something that we would wish to see damaged in any way, particularly at the outset. Quite often inquiries are born of tragedies and of very difficult circumstances, particularly for the individuals who may have been directly or indirectly affected. It is very important that those people, along with the general public, feel that they can trust the inquiry and feel confident about what it will do.
  I appreciate what noble Lords are seeking to achieve, but if one has a presumption, to move away from that presumption would run the risk of giving the impression that the inquiry was a lesser one. It is also an issue if one considers only inquiries with a judicial element to them; many inquiries are not conducted by senior lawyers or judges. I take the point about the value of using eminent legal professionals in that context—but not always, would be my view. To have
  GC 222
  any presumption is to move away from the principles of this Bill, which says that it is best to appoint the right person or persons to achieve the objectives. I bear in mind the 1996 Council on Tribunals objectives when making that point.
  It is for that reason that I would not move in the direction that has been proposed. I believe that the points made by noble Lords when speaking to the amendments are fully covered in the Bill, and I ask the noble and learned Lord, Lord Howe, to withdraw his amendment.
  Lord Howe of Aberavon: Before pronouncing my verdict on that invitation, and encouraging the Minister towards rather more mobility in the language that finally finds its place in the Bill, I should like to express my deep respect for the noble and learned Lord, Lord Hutton. That respect is in no way diminished by the fact that I have had to make comments on the conduct of his inquiry.
  I wish to amplify one of the points that the noble and learned Lord made, which in turn amplifies the case that we seek to make. I refer to his comment on the changing character of the media. The reactions that one expects to the publication of reports of the kind that he conducted with such meticulous care and integrity—and which he has been good enough to explain to us—are becoming less and less predictable and more and more likely to jeopardise the very institutions that we are here trying to enhance and stabilise.
  In Second Reading, I gave an example of the way in which the local press in Cardiff totally misrepresented what we tried to do. In shaping our judgments on the many individuals involved, we took great care to formulate them with restraint—we had to criticise some. But that care was not reflected in the press coverage at all. The leading articles took us seriously and were sensible, but the headlines did exactly the opposite, and the hospital was called "the horror hospital". Pictures of barbed wire on the wall appeared in the local press, and local bus crews were persuaded not to allow people working at the hospital to get on their buses. That is what happened 30 or 40 years ago—so long ago that I can hardly remember.
  In that light, I can quite understand the unpredictability of the storm that greeted the publication of the noble and learned Lord's report. However meticulously he endeavoured to address the questions in the rational pattern set out, as he explained, did he not deserve the protection, support and wisdom that might or might not have influenced decisions that he took—the support of the public knowing that he was not alone in his task? I used the word "protection", but that is a very condescending or patronising way in which to put it. But all such inquiries are exposed to such hazards now, and we need to reflect how often we will be able to get a man or woman to take an inquiry on single-handedly. He or she might want the buttresses that I have described.
  I turn to the last question, to which the noble and learned Lord referred, and the wisdom of responding to the dripfeed or non-dripfeed question and the handling of the media in the context of the question.

  GC 223
  I am reminded of a quite different episode, that of the Westland inquiry, in our time in government. The trigger that set that off was a decision, for which the responsibility has never really been made clear, to leak to the press a letter of advice from either the Solicitor- General or the Attorney-General. The whole hubbub developed around the question of handling the media. Was it Leon Brittan, was it Colette Bowe or was it Bernard Ingham—who was it? That question was at the heart of the storm that then broke. Perhaps that is the kind of factor that was not as vividly present in the noble and learned Lord's mind then as I am sure that it is now.
  Without any condescension whatever I respond with utmost sympathy to the points that the noble and learned Lord made. But I still believe that the wise reaction to his experience—and this is a very arrogant thing to say—is to hearken to the advice that we offer to the Minister. About the form of words that the amendment takes, I am more modest than my noble friend Lord Kingsland. He proclaims that the presumption proposition is right; I am not quite happy about that, but I want the Government to consider very seriously the need to think in that direction and along those lines.
  I understand the good faith with which the Minister advances her arguments, but we are in dangerous country. We want to see the concept of the inquiry properly founded, with as many resources as possible, and so established that it diminishes the hazards that had such an impact on the noble and learned Lord, Lord Hutton. I hope that the Minister will accept that my response to her invitation to withdraw the amendment is one founded on my immense optimism about the wisdom of her later reply. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 5 and 6 not moved.]
  Lord Goodhart Lord Goodhart moved Amendment No. 7:
  Page 2, line 6, at end insert—
  "( ) An inquiry panel is a public authority for the purposes of the Freedom of Information Act 2000 (c. 36)."
  The noble Lord said: In moving Amendment No. 7, I shall with the leave of the Committee speak also to Amendments Nos. 33, 54, 58 and 59. This group of amendments is designed to bring inquiries under the Bill into the net of the Freedom of Information Act 2000. We believe that information acquired by an inquiry should be subject to the freedom of information regime. That cannot be so at present because Section 32 gives absolute exemption to information obtained for the purposes of court proceedings, arbitration or inquiries. Subsection (2) states:
  "Information held by a public authority is exempt information if it is held only by virtue of being contained in

  a) any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or,

  GC 224

  b) any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration".

  I can see justification for the exemption provided by Section 32 for court proceedings and, indeed, for arbitration, as referred to in subsection (2). After all, litigants are justifiably entitled to privacy for documents that have not been disclosed in open court. But an inquiry is an entirely different situation. The whole purpose of the inquiry is the investigation of matters of public concern. It follows from that that the public should have right of access, in principle, to information that comes into the possession of the inquiry panel. It would be inappropriate, in principle, to keep that information secret. Refusing a right of access is, in effect, saying, "We have been investigating your concerns, but we can't tell you what we have found out about it"
  Of course, a right of access under the Freedom of Information Act would be subject to the exemptions contained in that Act, which would, I believe, give adequate protection when there is a public interest in seeing that that information is not disclosed. There are grounds, for instance, for refusing disclosure on issues such as the danger of harm to national security, to defence, to the economy, to law enforcement and the risk of damage to the health of an individual. There is an exemption for personal data and for damage to commercial interests.
  5.45 p.m.
  Most of those exemptions are conditional, not absolute, and therefore someone who applies for the information and has the application refused can go to the Information Commissioner for an order that the information should be disclosed because the public interest in disclosure is not outweighed by the public interest in maintaining the exemption. I see no good reason why, for example, journalists should not see all the information in the possession of the inquiry panel unless that information is covered by one of the exemptions provided by the Freedom of Information Act. There is a good reason why the media should have access, because public concern is not allayed if the public believe that the inquiry is keeping relevant information back.
  Two amendments in the group are needed to bring the inquiry within the scope of the Freedom of Information Act. Amendment No. 7 provides for the inquiry panel to be a public authority for the purposes of the Freedom of Information Act. Of course, the Act applies only to public authorities. Amendment No. 59 removes inquiries from the scope of the absolute exemption in Section 32, the relevant part of which I have already read out.
  We then have to deal with the interaction between the Freedom of Information Act and the other provisions of the Bill. The first amendment which deals with that is Amendment No. 33. That is an amendment to Clause 17. Subsection (l)(a) authorises the imposition of the restriction on attendance at an inquiry. That does not engage the Freedom of

  GC 225
  Information Act, so I will not look at that any further. However, Clause 17( 1 )(b) does overlap the Freedom of Information Act because it states:
  "Restrictions may, in accordance with this section, be imposed on … disclosure or publication of any evidence or documents given, produced or provided to an inquiry".
  Subsections (3) to (5) impose limits on restriction orders or notices.
  What is provided there is similar to some of the exemptions in the Freedom of Information Act. Crucially, if restrictions are imposed under Clause 17, there is no recourse to the Information Commission. The decision of the Minister or chairman to impose restrictions would be subject to judicial review, but in those cases it would be necessary for it to be shown that the decision of the Minister or the chairman was irrational and it would be a far harder test than would be the case if it went to the Information Commissioner.
  I therefore believe that a restriction notice or order should not override the Freedom of Information Act. Where disclosure of evidence is subject to a restriction order or notice, a member of the public should be able to challenge the operation of that order or notice by using the procedures under the Freedom of Information Act. That gives the final decision on disclosure to an independent person—the Information Commissioner— subject to appeal to the tribunal and ultimately to the ministerial override.
  Amendment No. 58 applies the Freedom of Information Act to the withholding of material from the report. It provides, first, that material in the report can be withheld only if it is material which is covered by an exemption under the Freedom of Information Act. The decision to withhold that information can then be challenged under the Freedom of Information Act procedure.
  We believe that it is wrong for the Bill to set up a separate system for the imposition of restrictions and for the withholding of part of the report.
  We have a Freedom of Information Act which has been in force since 1 January this year. It is plainly appropriate that we would use it and therefore I hope that the Government will accept that the provisions of this Bill should be brought into line with it. I beg to move.
  Baroness Ashton of Upholland: I am grateful to the noble Lord for explaining so concisely the purpose behind the amendment. I declare my interest because I am responsible for the Freedom of Information Act within the department and have long looked forward to it arriving. I believe it is a most important piece of legislation that will lead to better government.
  As the noble Lord, Lord Goodhart, said, the authorities under the Inquiries Bill are not public authorities. The information they hold while the inquiry is in progress is therefore not required to be released under that legislation. Members of the Committee will know that the Freedom of Information Act covers information held by government departments or the
  GC 226
  other 100,000 public authorities. That information supplied as evidence to the inquiry in the form of copies is covered because it is held by bodies subject to the Act.
  However, the Act does not extend to information supplied to the inquiry by bodies that are not public authorities—private individuals—or to the internal documents which are created by the inquiry panel during the course of its deliberations. That is the position in the Bill.
  I am interested in what the noble Lord, Lord Goodhart, is saying about why inquiries ought to be covered by the Freedom of Information Act and I shall certainly think carefully about that. However, I want to raise a number of issues that concern me in the amendments tabled and where I would need quite a bit of convincing that it would be the right approach. It might inform the debates that we shall continue to have on the subject.
  Members of the Committee know that an inquiry is usually of a serious nature where the public may well have lost confidence in a vital public service and there is a real fear that such a situation could arise again. These inquiries are therefore set up with a strong public interest to see the problem investigated as fully as possible and often as quickly as possible.
  The way an inquiry works is gathering its evidence, assessing it, reaching its conclusions and publishing its report. I submit that the right time for the relevant information to be made public is at the end of an inquiry presented in a full and coherent way, with all the appropriate analysis in the report. I would be worried about a situation in which people can request parts of an inquiry's evidence and analysis prematurely while the inquiry is ongoing.
  Of course the panel will want to look at all the evidence and explore all the possibilities, and if parts of the material are disclosed in a piecemeal fashion, we enter the debate raised by the noble and learned Lord, Lord Howe, about the role of the media if that were to happen. Presenting the evidence in a piecemeal rather than a coherent way at the end of the inquiry runs the risk of significantly weakening public acceptance of and confidence in an inquiry's findings, as well as potentially distracting the inquiry from its work while it has to rush off and chase what is happening.
  The noble Lord raised the question of journalists having a right of access. There is within Clause 17(6) the provision that, subject to any restrictions, the chairman must give public access to all hearings and evidence. I do not therefore suggest that we are trying to restrict the access of the public, except in the exemptions we discuss, but I am concerned about information released in dribs and drabs. Indeed, a section of the Freedom of Information Act provides that if a department is about to publish something in the course of its normal publications, it should not be required to bring forward parts of that under the Bill. Although that is not covered by the Bill, the same analysis applies. I am therefore a little worried about the suggestion and would want to explore the issues around it.

  GC 227
  I am concerned, too, about Amendment No. 33 and the impact it could have on the candour of some witnesses. Members of the Committee recognise that some inquiries are held in private because there is the opportunity to achieve better, fuller and franker testimony. The Royal Liverpool Children's Hospital inquiry, with the groups who represented the people affected by those events, requested the private format because it believed that it would make the inquiry work better. That request was acceded to.
  Inquiries, by their investigative nature, rely very much on people volunteering evidence. Of course they have the powers to ensure that witnesses speak truthfully and provide particular information, but I wonder whether they would be less effective if there were a deterrent to witnesses volunteering information and opinions.
  As I said, the Freedom of Information Act has exemptions to protect sensitive information. However, I am not sure that every witness appearing before an inquiry would know the detail of those exemptions. It might lead to inhibitions, and I would want to consider that carefully as we debate the issues. Perhaps the noble Lord might reflect on those points.
  Amendments Nos. 54 and 58 seem to present an interesting suggestion. However, it is unlikely that either an inquiry chairman or a Minister would attempt to withhold information that a member of the public would have the right to request under the Freedom of Information Act. The power to withhold information from an inquiry is restricted. It allows a person under the Bill to withhold material if required to do so by law, as the noble Lord, Lord Goodhart, said, in the public interest; because it would cause harm or damage; or because it was acquired on a confidential basis. I believe that that would mean small redactions of particular pieces of information.
  However, I understand what the noble Lord is saying and the concern that powers could be abused. I can see that a provision along the lines proposed in those two amendments might offer some reassurance. I ask him to allow me to give further thought to how that might work and to discuss the matter with colleagues. According to the drafting of the Bill, the chairman is not a public authority for the purposes of the Act, but the sponsoring department is. I will take away the idea in those two amendments. I hope that in the light of my concerns on the earlier amendments, the noble Lord, Lord Goodhart, will reflect on them and perhaps we can discuss them beyond the Committee. I recognise the importance of the other two amendments, and I am willing to take them away and consult with the noble Lord before coming forward with any ideas. I hope that on that basis the noble Lord will withdraw his amendments.
  Lord Goodhart: I am grateful to the Minister for giving a sympathetic reply, if not one which concedes the amendments that I tabled. It does not satisfy all my concerns by any means. I agree that it would not be satisfactory to allow evidence to be looked at in drips and drabs in the lead-up to the publication of the
  GC 228
  inquiry. Indeed, it is likely that such information would be covered by Section 22 of the Freedom of Information Act.
  However, I am concerned that information which would be disclosable under the Freedom of Information Act if it is applied would remain subject to restrictions after the publication of the report. A restriction notice or order under Clause 17 does not come to an end when the report is published. Indeed, it continues for a period of 30 years following the date on which the inquiry comes to an end, under Clause 18(6). There is a strong case for saying that information, which is not contained in the report but may be part of the background, should be subject to publication at that point.
  6 p.m.
  I accept that there are problems with people wishing to give information in confidence, for instance, which is personal to them. Again, that would be covered by the exemptions. For instance, personal information is covered by the exemption under Section 40. In those circumstances, I cannot see that any adverse consequences are likely to follow. One cannot rely on the ignorance of the people who are asked to supply information, who are in fact adequately protected, as being grounds for saying that information generally should not be subject to the Freedom of Information Act.
  In those circumstances, I wait with interest to hear further from the Minister. This is an important issue, which, in some ways, is the most important raised by all the amendments. Unless we are able to reach satisfactory agreement here, I am likely to raise it again on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 3 agreed to.
  Clause 4[Appointment of inquiry panel]:
  Lord Kingsland Lord Kingsland moved Amendment No. 8:
  Page 2, line 9, at end insert ", after consultation with the chairman"
  The noble Lord said: Amendment No. 8 would ensure that the Minister consults the chairman before appointing anyone else to the inquiry panel. Amendment No. 16, also in my name, makes it obligatory for the Minister to consult the chairman on any further appointments under Clause 6.
  As I understand it, the amendment tabled by the Liberal Democrats proposes that the Minister must consult with any outside bodies or persons that he considers appropriate before appointing anyone else to the panel. The issues here are both obvious and straightforward, dare I say it. 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.

  GC 229
  Equally, it is right that a duty to consult before making appointments should be imposed on the Minister, because this would give the public more confidence in the members of the panel who are conducting the inquiry. I beg to move.
  Lord Laming: In his opening comments, the noble Lord, Lord Kingsland, referred to his concerns about the shift of power from the chairmen to Ministers. It seems to me that Amendments Nos. 8 and 16 address those concerns in an important way. I support both those amendments because it is important that the chairman of an inquiry is seen to be responsible for the conduct of the inquiry in every respect. The noble and learned Lord, Lord Howe, earlier referred to the collegiate approach. It is important that there is a genuine sense of teamwork between the chairman and any assessors that sit with him. It is important that the chairman is seen to be in control of the inquiry. I support Amendments Nos. 8 and 16.
  Lord Borrie: I wonder whether the noble Lord, Lord Smith, wishes to intervene, since his amendment is grouped with this one.
  Lord Smith of Clifton: I thank the noble Lord for that prompting. I was just looking at my notes. Amendment No. 9 is really to ensure, in a belt and braces way, that the Minister will take due endeavours to see that he takes appropriate advice in setting up an inquiry.
  Lord Borrie: I strongly support the basis of what the noble Lord, Lord Kingsland, said, in suggesting that it is most important that if there are wingmen, the chairman should have the fullest confidence in those wingmen. It would be most inappropriate and most unwise for the Minister to appoint as members of the panel someone who was not fully approved by the chairman. Consultation would be appropriate.
  In a legalistic way—but as the noble Lord is a well-known lawyer, he will not mind me putting it this way—I wonder that in Clause 3(2) it says:
  "References … to an inquiry panel are to the chairman and any other members of the panel"
  One might read his amendment to Clause 4 as suggesting that the Minister must consult the chairman before appointing the chairman. That seems a bit of a nonsense, but I wonder whether the drafting is correct. I am not at all in favour of Amendment No. 9, if only because of the time factor, which several of your Lordships have mentioned in relation to inquiries in the past, and the great need for a rapid appointment. It may be that in the case of—let me use the example of the noble and learned Lord, Lord Howe,—the Widgery Committee, in the original inquiry into Bloody Sunday, was almost too rapidly appointed. None the less, there is a need for speed, and speed was one of the four points quoted by the noble and learned Lord, Lord Howe, put by the report of the Council on Tribunals in 1996. Some speed in appointment and speed in dealing with the inquiry is of some importance, but not all-important.
  GC 230
  It may be a bit difficult sometimes to comply with the requirement that the,
  "Minister shall consult such bodies as he considers appropriate".
  If the Minister is a reasonable man, as all Ministers are, there might be lots and lots of bodies that are appropriate. Does he have to consult them all? If he does not, maybe someone will think of a judicial review, which would be most unfortunate. I am not sure that I like Amendment No. 9.
  Lord Laming: When I spoke earlier in support of Amendments Nos. 8 and 16, I felt inhibited about referring to Amendment No. 9, because it had not been moved. I urge great caution on Amendment No. 9, for the very reason that the noble Lord, Lord Borrie, has ably set out. The number of people who may feel themselves to be appropriate to be consulted may be different to the number who the Minister or the chairman feel appropriate to be consulted. We must exercise some safeguards here, to ensure that the setting-up of an inquiry does not become subject to judicial review after judicial review.
  Lord Kingsland: Before the Minister responds, I express my gratitude to the noble Lord, Lord Borrie, for pointing out that the amendment to Clause 4(1) should really interpose after the sixth word "panel". The definition of an inquiry panel comprises both a panel with more than one member and a panel that consists only of the chairman. It must therefore follow that the apposite analysis of the amendment given by the noble Lord, Lord Borrie, is correct. I thank him for that.
  Baroness Ashton of Upholland: I, too, would have raised with the noble Lord, Lord Kingsland, the slight difficulty in the technical language that would have led to that problem in his amendment. Anyone who thinks that the eloquence with which the case is put does not affect Ministers has only to look at my notes, which have changed from "resist" to "consider" in the course of the past three or four minutes.
  I appreciate the sentiment behind the amendment. It is my belief that in practice consultation would take place between the Minister and the chairman. In reality, in any practical situation when an inquiry is beginning, the chairman has the option of walking away from his task if he is not content with who else might be panel members if he does not feel that they can contribute in the right way, or if he is not content with any proposals to appoint further panel members under Clause 5(l)(b)(ii). If noble Lords feel that this should be said more clearly, I am happy to give it some consideration and to change what I was going to say on that basis. I cannot accept the amendment, because as the noble Lord recognised, it is technically incorrect anyway. I need to go back and consult on that to make sure that my initial view is held by others.
  I agree with the noble Lords, Lord Borrie and Lord Laming, about the issue around Amendment No. 9. It is sensible to understand and expect that there will be consultation where Ministers feel there are people who should be consulted, but requiring

  GC 231
  someone to consult does not necessarily ensure that those consulted will be at all satisfied with who is chosen. The purpose of an inquiry is to restore public confidence and in a sense to serve the interests of the public rather that the interests of particular groups or individuals, however important and personal the issues that have been raised by the need for the inquiry are. We should not lose sight of that wider public interest in what we do.
  There is the potential, possibly, for judicial review, as the noble Lord, Lord Borrie, said. More arguably, the experience of those who have chaired inquiries, and Ministers who have been involved in them, has been that there can be a clamour from all sorts of organisations which believe that they should be consulted. I want to be cautious about putting that in the Bill for that reason. That does not in any way denigrate the sentiment behind the amendment, which is a desire to see that there is consultation. We would expect it, but in an appropriate manner. For the reasons that I have outlined, I hope that the noble Lord will feel able to withdraw his amendment.
  Lord Smith of Clifton: I thank the Minister for that explanation. Amendment No. 9 was a probing amendment. We are grateful for what she has put on the record; that Ministers should reasonably be expected to consult, not with the entire world, but to make appropriate consultations.
  Lord Kingsland: I am most grateful to the noble Baroness for responding to our amendments in a constructive way. I have already recognised that certain sections of the draft need a degree of refurbishment, and perhaps I might even entertain the prospect that on Report the Minister might return with her own version of what we intended here. I emphasise that all we are asking is that the chairman should be consulted; we are not suggesting that he should have a veto. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.15 p.m.
  [Amendment No. 9 not moved.]
  Clause 4 agreed to.
  Clause 5[Setting-up date and terms of reference]:
  Lord Goodhart Lord Goodhart moved Amendment No. 10:
  Page 2, line 20, at end insert—
  "( ) Before establishing the terms of reference the Minister shall consult—

  (a) the chairman; and

  (b) such bodies or persons as he considers appropriate."

  The noble Lord said: I can be brief. It seems to us that it must be good practice for the Minister to consult the chairman before settling terms of reference, and, indeed, to consult with other bodies as well. We simply believe it is desirable that this should be in the Bill.
  GC 232
  The noble Lord, Lord Kingsland, tabled an amendment that is somewhat stronger than ours because it requires not only consultation with the chairman but also his or her consent. That seems to us an acceptable alternative. In practice, of course, 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. It seems a useful alternative to put on the face of the Bill. One or other of these amendments would be welcome. I beg to move.
  Lord Kingsland: Such has been the persuasiveness of the advocacy of the noble Lord, Lord Goodhart, that I am prepared to withdraw my amendment in favour of his. On mature reflection, the noble Lord is right and I am wrong. My amendment would give the chairman a power which I think in the circumstances is inappropriate. Therefore, unabashed, I might add, I shall withdraw the amendment and put all my weight, such as it is, behind the noble Lord.
  Lord Laming: I support the first part of Amendment No. 10, but I invite the noble Lord, Lord Goodhart, to bear in mind the comments that have just been made about consulting bodies. I do not disagree with the principle, but I am concerned about the practice and the difficulties that it could lead to. It is absolutely essential that the chairman should be consulted about the terms of reference.
  Baroness Ashton of Upholland: It is interesting to have amendments withdrawn as we speak. I had a very nice line about the noble Lord's amendment which I shall have to leave for another day.
  As the noble Lord indicated, the joined-up amendment, if I may describe it as such, seeks to ensure that the Minister consults the chairman, and any others he considers appropriate. The noble Lord, Lord Laming, has already raised the question that we dealt with on the previous group of amendments concerning the openness of that, and those who have expectations that cannot be met.
  No clause within the Bill specifically precludes the Minister from having any prior discussions with the chairman or with any other interested parties before setting up the terms of reference. It is my view that in practice the Minister will consult the chairman, because no chairman will accept the job unless he or she is happy with the proposed terms of reference and with other aspects of how the inquiry is to be conducted. All noble Lords who have spoken from personal experience of inquiries know that the task of chairing an inquiry is an onerous one, not one to be undertaken lightly and for which there is not usually a rush of volunteers. I suspect that some noble Lords would never chair an inquiry again due to the workload that is involved.
  I am not sure that the reference to consulting,
  "such bodies or persons as he considers appropriate"
  adds anything. As I have indicated, if the Minister thinks it is important to consult, he or she should do so. In the consultation paper, Effective Inquiries, the Government acknowledged that there would sometimes be a good

  GC 233
  case for a period of time before announcing an inquiry and the name of its chairman and settling the terms of reference, and during this period some consultation on draft terms of reference might be appropriate. That view was supported in responses and, indeed, we have reflected that in the way in which we have structured Clauses 4 and 5. We anticipate, therefore, that there will be opportunities for the Minister and the chairman to discuss the terms of reference and, as I have already indicated, for the Minister to talk to others where appropriate to discuss what the terms of reference might be.
  I again go back to what I said earlier; that is, the purpose of an inquiry is to serve the public interest. The terms of reference must reflect that and must be concerned with restoring public confidence, if that is an essential part of what the inquiry is meant to do. I am worried that this provision might create an expectation among those directly affected that an inquiry would be conducted in a way that would serve their purposes. Valid though they might be for them, I am not entirely sure that they would be valid for the inquiry. That is why I am not keen to accept this amendment. I am concerned that we position the role of the chairman and the role of the Minister appropriately.
  As regards the consent sought by the noble Lord, Lord Kingsland, I am concerned that would put the onus on the chairman, who needs to be protected, as it were, from those who might approach him regarding the terms of reference. He would be protected from such approaches if the terms of reference were already set and must be followed. That is an important matter and one that we shall discuss when we consider variation regarding terms of reference. We believe that Clauses 4 and 5 provide an appropriate period of time to enable consultation to take place. However, I am not keen to include the provision on the face of the Bill for the reasons that I have indicated. I hope that the noble Lord will withdraw the amendment.
  Lord Goodhart: I am grateful to the Minister. I have taken on board the comments of the noble Lord, Lord Laming, and the Minister, that it would be undesirable to make a specific reference to consulting other bodies and persons. I am happy to abandon that part of Amendment No. 10.1 still think that there is a justifiable case for putting on the face of the Bill an obligation on the Minister to consult the chairman. Although I recognise that in practice that is likely to happen, it would make the situation clearer if it were put on the face of the Bill. Therefore, I shall consider whether to bring the measure back on Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Goodhart Lord Goodhart moved Amendment No. 11:
  Page 2, line 20, at end insert—
  "( ) The Minister shall lay the terms of reference before each House of Parliament."
  The noble Lord said: This is a somewhat more important amendment than the previous one. Even if we preserve the Tribunals of Inquiry (Evidence) Act,
  GC 234
  inquiries will very rarely be set up under that Act. The setting up of an inquiry will generally therefore be an executive act. That is understandable. However, if the Government are using powers under this Bill, the relevant Minister should keep Parliament informed of what he or she is doing. Amendment No. 11 would achieve this by requiring the terms of reference to be laid before Parliament. The amendment goes no further than that; they do not have to be approved.
  Amendment No. 15, in the name of the noble Lord, Lord Kingsland, goes further. It would require approval of terms of reference by Parliament. I have not yet heard the noble Lord speak to that amendment, but I am less than entirely sympathetic. We support the retention of the Tribunals of Inquiry (Evidence) Act for exceptional cases, but requiring parliamentary approval of all inquiries under this Bill would be likely to mean that Ministers would set up non-statutory inquiries whenever possible. That is not a good idea. I beg to move.
  Lord Kingsland: The noble Lord, Lord Goodhart, has been at his most persuasive today. Not only did he convince me that his previous amendment was better than mine, but he has now convinced me that his current amendment is better than mine. In those circumstances, I propose not to move my amendment and to support his for all the reasons that he gave.
  Lord Laming: I support Amendment No. 11.
  Baroness Ashton of Upholland: The noble Lord has done it again—he has removed my opportunity to talk about the amendments. We are very clear that it is for Ministers to be responsible for setting up inquiries, because they are responsible for ensuring that any situation that necessitates such an inquiry is thoroughly investigated and that any possibility of a recurrence of such an event is prevented, if that is what we seek to do. They must be responsible for deciding the terms of reference. That is why I would not have supported the amendment tabled by the noble Lord, Lord Kingsland. Ministers are accountable to Parliament for the decision, which brings in the question of the amendment tabled by the noble Lord, Lord Goodhart.
  I recognise the concern about the lack of parliamentary involvement in the establishment of inquiries, and I have already promised that I will look at that. What the noble Lord said had a great deal of merit. It has been the practice, for many years and many past inquiries, that Ministers make statements to Parliament doing just that. I will take the specific proposal away and think more fully about it. I am very interested in whether it would allay the concerns about making sure that Parliament played a role.
  The questions at which one would always need to look in terms of parliamentary involvement are on practicalities. Parliament could be in recess when something happens and there is the question of moving to an inquiry. Any provision would have to be framed in a way to accept that as a fact. That does not preclude it being done at all; I merely recognise the fact. There are also issues around the devolved administrations and how provisions would work for them. We need to

  GC 235
  think about that, which is why I shall not accept anything today. On that basis, I hope that the noble Lord will feel very confident in withdrawing his amendment.
  Lord Goodhart: I am most grateful to the Minister for what was certainly an encouraging reply. It is important to maintain some parliamentary involvement in the process, and the amendment seems to strike a fair balance between having parliamentary involvement and not causing complications and difficulties in the setting up of inquiries. I see that technical issues must be considered, but I hope that they can be overcome and that we will see a government amendment to give effect to the principle behind our amendment. If the Government do not produce their amendment reasonably soon, we will table our amendment again for Report to keep them on their toes. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 12 not moved.]
  Lord Goodhart Lord Goodhart moved Amendment No. 13:
  Page 2, line 21, at end insert—
  "( ) The Minister may, with the agreement of the inquiry panel, modify the terms of reference at any stage during the inquiry."
  The noble Lord said: I am sorry to come back yet again. The amendment is designed to simplify procedure. The Bill makes no provision for altering the terms of reference after an inquiry has been set up. Investigations will often disclose, after an inquiry panel has started its work, that the original terms of reference are not wide enough, and that it is apparent that new matters need to be looked at. When I raised the matter earlier, we were told by the Minister that an inquiry could in those circumstances be terminated and restarted as a new inquiry with new terms of reference. That seems to be a wholly unnecessarily clumsy way of dealing with what should be a simple matter. If the Minister and the panel agree that the terms of reference need changing, they should be able to change them without having to go through the process of terminating one inquiry, serving notice of termination and so forth and starting up a new one. Of course, the system should need the agreement of both the Minister and the panel. The panel should certainly not be able to force new terms on the Minister or the Minister force new terms on the panel.
  6.30 p.m.
  Amendment No. 14 is similar, but somewhat more limited. We would not wish to see the power to alter the terms of reference limited specifically to cases where they need to be altered because of new evidence—there could be other circumstances in which the terms of reference need to be altered while the proceedings are continuing. I beg to move.
  Lord Kingsland: Substantially, our Amendment No. 14 mirrors that of Amendment No. 13 moved by the noble Lord, Lord Goodhart, so once again, I find myself broadly ad idem with the noble Lord. As he rightly said, the one difference between our drafting
  GC 236
  and his relates to the question of new evidence. Where there is no new evidence, I doubt that it would be appropriate to permit a change in the terms of reference. If the terms of reference were changed in the middle of an inquiry, just because the Minister had an afterthought, that would prejudice the whole way in which the earlier part of the inquiry was undertaken. It might lead to individuals who had originally not chosen to give evidence then clamouring to give evidence on matters that had already been heard.
  Therefore, I would be reluctant to allow the provision to be triggered unless something fresh and unforeseeable came to light at the beginning of the inquiry. Having said that, I agree entirely with the noble Lord, Lord Goodhart, that the solution furnished by the Bill seems to be "unduly bureaucratic". In my submission, the approach of the draft moved by the noble Lord, Lord Goodhart, and our draft get the balance about right between the role of the chairman, the role of the Minister and the degree of flexibility that ought to be built into the Bill.
  Viscount Bledisloe: I had hoped to hear the noble Lord, Lord Kingsland, say that the amendment of the noble Lord, Lord Goodhart, was undoubtedly preferable, as it undoubtedly is. First of all, I am surprised that the noble Lord, Lord Kingsland, has the desire to be three times more prolix than the noble Lord, Lord Goodhart. Secondly, what on earth does,
  "after consultation with, and the agreement of, the chairman",
  mean? Does one get agreement from someone without having consulted them? Surely those words are totally unnecessary.
  Thirdly, surely it is wrong, if there is a panel of three, that the chairman and the Minister can agree to alter the terms of reference in spite of the two wingmen? Surely, the panel must agree, not the two wingmen? Finally, surely this is not only relevant if new evidence emerges. Suppose a new issue emerges? Suppose that one of the participants early on raises a totally different issue on the evidence, perhaps of bad faith or something, which requires consideration. Surely the terms of reference must be changeable then, not merely when there is new factual evidence which has emerged?
  Having said that, it is enormously preferable to have this power in the Bill rather than have this ridiculous farce of scrapping the inquiry and starting again. Nobody in the public could possibly understand that because they would think that somehow the thing had been shut. It might mean that some difficult party insisted that the thing was started again from scratch and that all the evidence that had been heard was re-heard. I very much hope that the Minister will accept the principle of Amendment No. 13.
  Lord Neill of Bladen: I make one observation and utter a word of warning. Committee Members will not have to cast their minds back many months to think of a couple of inquiries with high public interest where from time to time there was clamour about the restricted terms of reference in the particular cases. If we create this power and put it in the Bill, which I

  GC 237
  support, Committee Members should be aware that we are creating a political football. We are opening the door to the pressures that have been media pressures in the past turning into pressures applied to the Government, the Minister and so forth. That is a quite likely—indeed, almost certain—consequence if there are half a dozen future inquiries using a Bill amended in this form.
  I am not saying that I am against the Bill: it is absurd to have to cancel the inquiry and set up a second one and then consolidate—that would be ridiculous. The power should be there.
  On the other point, I entirely agree with the Committee Members who have already spoken. If we are going to have this power it should be wide open and not limited to new evidence. Those who have had experience of litigation and trying to persuade a Court of Appeal that something is or is not new evidence will know that one gets into great difficulties if fetters are imposed on a power. It is much better to leave it wide open as the noble Lord, Lord Goodhart, proposed.
  Lord Borrie: I had in mind to make a somewhat similar point to that made by the noble Lord, Lord Neill of Bladon, but with a different conclusion. Yes, indeed, a provision of this sort may well encourage a "clamour" and frequently a clamour that would rightly be opposed by the Government. However, it could cause great difficulty. When people can point to a power in the Bill to alter the terms of reference at any time, that power surely must be exercised because of this reason or that reason. What has been suggested as a silly or damaging thing—for the Government actually to close down an inquiry and start another one—could have merit. It would be done only in the rarest circumstances and that may be the right thing. Otherwise, with a provision of this sort, a clamour could result in a change in the terms of reference, which could happen frequently at more or less every inquiry.
  Baroness Ashton of Upholland: I find this debate extremely interesting, but I am not persuaded at all. At Second Reading I undertook to obtain advice from officials concerning whether closing down and restarting an inquiry would be a cumbersome process. It could be done in a matter of hours. There would be no reason to rehear evidence if an inquiry was continuing along the same path. Therefore, some of the objections that have been made about the bureaucracy involved fall away.
  What is really important is that one should not underestimate the importance of the step that has been taken in order to move the terms of reference. The terms of reference are not based on evidence. There is no evidence at the beginning of an inquiry. An event or events have taken place and the terms of reference are determined around those events. If there is substantial change in the information that comes forward, I submit that that means that it is a different inquiry
  GC 238
  The inquiry may require, for example, different assessors. Indeed, it may even require different expertise or experience on the panel. It certainly might need to rethink, and in those circumstances it would be inappropriate simply to say that we would amend the inquiry—it would need to begin again.
  In the evidence that we have collected from talking to noble Lords and others who have been involved in inquiries, I am confident that inquiry chairmen often find themselves under huge amounts of pressure to alter the terms of reference and to change the nature, the style or the way that the inquiry is progressing. What gives certainty in the public mind and what is in the public interest is being absolutely clear about what an inquiry sets out do and then seeing that the inquiry has achieved that. The noble and learned Lord, Lord Howe, described the role of the media. The media do not necessarily like the outcome from the terms of reference, but none the less, there is great clarity in understanding what the inquiry was set up to do.
  It is damaging to consider that an inquiry could be buffeted by the desire to change the terms of reference or have them changed. Any change should be considered only in serious circumstances. At best it could create confusion. At worst, it could encourage changes to be made that may be inappropriate.
  We have set out to be very clear that the terms of reference are set, taking on board what we have said about the consultation with chairmen and others who might appropriately be consulted, and what I have said about previous amendments. It must be clear what the inquiry seeks to do and if—and only if—it is clear that those terms of reference are inappropriate, there is a definite step. That step is non-bureaucratic and does not require a lengthy time—such a change could be made in an evening and there would be no loss of sitting days. However, it is none the less a very important step that should not be treated with anything other than gravity. Because the process is not bureaucratic and because it is a brave thing to do, I hope that Committee Members will see that what we have created is the right way forward in this particular case and withdraw the amendment.
  Lord Goodhart: I am disappointed by that response, which is illogical. Of course, I take the point about the clamour for changing the terms of reference. No doubt that would happen, but I agree with the noble Lord, Lord Neill of Bladon, that that is not a reason for not inserting the power to alter the terms of reference. Clamour is something that governments have to put up with and learn to live with. If it is as easy and straightforward as the Minister says to terminate an inquiry and substitute a new one with different terms of reference there will be just as much clamour.
  Baroness Ashton of Upholland: The clamour that I described was related to what happens to the chairman as opposed to the Minister. It is important that the chairman is able to act with clarity. It may be an easy step, but it is a deeply significant step.
  Lord Goodhart: It is right that the Government should have a choice, depending on the circumstances of the case. They should be able either to alter the existing terms of reference or to terminate the inquiry and come back with a new one. I will certainly look at my amendment again. I am considering adding to the end,
  "if the Minister is satisfied that such an alteration is necessary in the public interest",
  to borrow some words from the amendment of the noble Lord, Lord Kingsland.
  I find it difficult to understand the Government's position. It is certainly very likely that we will bring this amendment back. Having said that, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 14 not moved.]
  Clause 5 agreed to.
  [Amendment No. 15 not moved.]
  6.45 p.m.
  Clause 6[Further appointments to inquiry panel]:
  [Amendment No. 16 not moved.]
  Clause 6 agreed to.
  Clause 7 agreed to.
  Clause 8[Requirement of impartiality]:
  Lord Kingsland Lord Kingsland moved Amendment No. 17:
  Page 3, line 14, leave out subsection (1).
  The noble Lord said: My rather anodyne observations in support of Amendment No. 14 provoked what I can only describe as an excoriating response from the noble Viscount, Lord Bledisloe. He will therefore understand that it is with some trepidation that I speak to Amendment No. 17.
  The amendment concerns the requirements for impartiality in members of the panel. It is simply intended to probe what is meant by subsection (1). In particular, what do the phrases "a direct interest" and "a close association", in the opinion of the Government, mean? And on what basis should a Minister make up his mind as to whether the interest or association might prove prejudicial? It is as simple as that. I beg to move.
  Lord Fraser of Carmyllie: There is not a part of the clause with which I disagree, but I wonder why my noble friend stopped his red pen at the point that he did. It must be self-evident law that, if you are to appoint someone to chair such a tribunal or inquiry, he will be impartial. In recent times in the courts, we have had repeated instances of such eminent lawyers and judges as the noble and learned Lord, Lord Bingham, spelling out exactly the circumstances in which a person should recognise whether he has a conflict of interests or his impartiality is in any way to be impugned.
  I do not object to any part of the clause, but my concern is that it seems only a partial attempt at codification of the law. It is most interesting to see that one provision is not included. I understood the noble
  GC 240
  and learned Lord, Lord Bingham, to be making the very good point that there might be circumstances in which people should not disqualify themselves from taking part of an inquiry because someone had alleged that there was an interest on their part. It has to be substantial. If I recollect accurately, he said something to the effect that it is as much a breach of your public duty to withdraw too readily when objection is made as it would be to carry on when it is quite obvious that there is something partial in the way you approached a matter.
  I very much share the view of my noble friend but I want to probe why, of all the provisions that there are in law relating to the way in which an individual should conduct himself if entrusted with a public responsibility, these issues have been singled out, and why we do not have a broader range.
  Viscount Bledisloe: I support the amendment unequivocally. A Minister is not required to refrain from appointing a person if in his,
  "opinion the person's interest or association would be unlikely to influence his decisions".
  As I have always understood it, the requirements of impartiality require not only that your connections will not influence your judgment, but that they will not be seen to do so.
  The Minister may know the person that he is appointing so well that he is totally confident that he will not influence his decision—but surely he must, under common law, take into account the fact that in the eyes of many of the public, who do not have that close acquaintance with the nominee in question, it will seem highly likely to influence his decision. Surely the clause must go and be replaced by the position under common law.
  Lord Goodhart: I am certainly persuaded by what has been said that there is a serious point here that might be met by leaving out the last two lines of subsection (1). As the clause stands, it more or less says that it is all right to be partial so long as you are only a little bit partial. I know that an inquiry is not strictly a court, but the same standards of independence and impartiality are appropriate as would be under Article 6 in the case of court proceedings.
  Baroness Ashton of Upholland: I am very grateful to the noble Lord, Lord Kingsland, for indicating that the amendment was probing, because I had some difficulty understanding what he sought when looking at what it actually did. I shall therefore ignore my notes on what the amendment would do; clearly, our discussion has taken us in a slightly different direction.
  I am conscious of not being a lawyer in dealing with some eminent lawyers in terms of the codification of what is in the common law. All that I say to the noble and learned Lord, Lord Fraser, and the noble Viscount, Lord Bledisloe, is that it is my job to take away those comments about whether the codification

  GC 241
  that we have is appropriate. The rationale for putting in what we have done is that we think that the issues are critical in the view of the public; namely, that it is very important in terms of the theme that I have tried to expound about public confidence and that people believe that those conducting the inquiry will do so without a vested interest in it.
  By "a close association", we mean links that would be likely to cause concerns or—to deal with the issue of public concern—that people would feel were strong. It might be involvement, however vague, in a company being investigated, and so on. I am sure that Members of the Committee would recognise that. "A direct interest" is having been involved in specific events.
  I differ slightly from the noble Lord, Lord Goodhart, on the idea of a bit of an interest. One has only to look at the health service, where one may put together a panel of inquiry to examine a question about the work of a major hospital trust. Having someone who knows the hospital well—perhaps an eminent surgeon or someone who was involved in the trust some years ago—may be of relevance. In some areas of public life, people know each other. In the law, there are sometimes allegations that it is because of X knowing Y that such a person has been appointed to such a position.
  Lord Neill of Bladen: Before the noble Baroness concludes her observations, as she talked about public perception perhaps she will take away the thought that subsection (4) puts the matter on a different basis from subsection (1), because:
  "A member of the … panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such".
  That is an external view of how the matter might be regarded in public perception. I thought that that might be a useful thought to carry away and look at if considering a redraft of subsection (1).
  Baroness Ashton of Upholland: I am grateful to the noble Lord for that observation. The point that I seek to make is that we will take away the comments about codification and the common law. I hope that Members of the Committee understand why we are where we are on the specific importance. However, when one is looking for expertise and experience, as long as one recognises the connection and can see that it would not influence in an adverse way, there can be public confidence in someone who still has a connection. One would not wish to rule that out completely, because one would not get the result in terms of a positive inquiry that one would wish.
  On the basis of what has been said, I shall take the matter away and think more fully. I hope that the noble Lord will withdraw his amendment.
  Lord Kingsland: I am most grateful to the Minister for her response and indeed for the observations of other noble Lords which have enriched my own understanding of the clause. As I understand it, the Minister has undertaken to go away in order to
  GC 242
  consider whether subsection (1) is necessary at all. Or is she going away to consider whether the subsection needs sharper drafting?
  Baroness Ashton of Upholland: I am grateful to the noble Lord. The basis of the subsection is the importance of establishing public confidence in the process. The issue that has been raised is whether it has been drafted in the most appropriate way. I look forward to the expertise that I hope is on offer to me from our discussions to look at that more fully.
  Lord Kingsland: So the view of the Minister is that, because of the issue of public confidence, it is necessary to include a subsection of this kind in the Bill irrespective of whether the common law, together with the Human Rights Act, covers these issues. Therefore, the Minister is going to go away and come back with a new draft. I am most grateful. In those circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 8 agreed to.
  Clause 9 [Appointment of judge as panel member]:
  Lord Goodhart Lord Goodhart moved Amendment No. 18:
  Page 3, line 33, leave out "consult" and insert "obtain the consent of
  The noble Lord said: The effect of this amendment is to require the consent of the senior Law Lord to the appointment of a Law Lord to conduct an inquiry and the consent of the Lord Chief Justice to the appointment of a judge of the Court of Appeal or the High Court or a circuit judge to conduct an inquiry. There are corresponding provisions relating to Scotland and Northern Ireland.
  The Bill as drafted requires only consultation, not consent. The amendment would meet concerns which have been expressed by the Lord Chief Justice and which I believe are reasonable. Only a limited number of judges is available for judicial work. Inquiries can be extremely demanding and long-lasting. I have in mind particularly the Bloody Sunday inquiry, which has resulted in the removal of the noble and learned Lord, Lord Saville of Newdigate, who is undoubtedly one of our ablest judges, from the membership of the Appellate Committee of the House of Lords for years. The Lord Chief Justice is of course responsible for judicial deployment in the Court of Appeal, the High Court and the Crown Court and it is entirely reasonable that he should give his consent before a judge of those courts is seconded for duty on an inquiry.
  Amendment No. 19 is of course different in wording, but identical in meaning. I hope that the Government will consider this, because the number of eligible chairs of inquiries is by no means limited to judges and it should be possible, where appropriate, to find a senior member of the legal profession or somebody who is not a member of the legal profession at all. No doubt, where there is a genuine justification for asking for a judge, as there sometimes will be, there

  GC 243
  is no reason to suppose that a future Lord Chief Justice would be likely to react unfavourably towards a reasonable request. I beg to move.
  7.00 p.m.
  Lord Fraser of Carmyllie: There have been two instances in recent years when distinguished judges from Scotland have been invited by Ministers of the United Kingdom Government to head inquiries; first the noble and learned Lord, Lord Cullen, who is now the Lord President of the Court of Session, was invited to look into the Paddington disaster, and more recently Lord Penrose was invited—I am not sure by which Minister—to carry out the inquiry into the Equitable Life fiasco.
  It may or may not be the case in England—I would not presume to offer an opinion on it—but the Scottish Bar and Bench is a pretty small one. To have at any one time two members of the Scottish Bench conducting inquiries in England on behalf of United Kingdom Ministers could impose a considerable strain on the resources of that small Bench, which is 25-strong. If you take off some 10 per cent at any time, there must be a real risk that the strain imposed will be too great for the jurisdiction to handle. Accordingly, in such circumstances there is some force in the remark made by the noble Lord, Lord Goodhart, that the consent of the President of the Court of Session should be obtained. In such circumstances, he looks not only to see whether the person is of suitable qualification to head up such an inquiry, but looks to his own resources to see whether he can afford the time. In the case of Lord Penrose, I think he was removed from the courts in Scotland for something like 18 months to carry out his extensive inquiry.
  The difficulty here is that those who will allow for pay and rations for the Scottish Bench are those Members of the Scottish Parliament on the Scottish Executive team, and not the English Minister who might want to appoint such a judge. There has been a long tradition, which I do not at all resist, of Scottish judges being invited to take on such tasks. I go back to the last discussion that we had, that Scottish judges are often seen as very skilled and experienced outsiders who will come with no issues of partiality attached.
  I support the idea that the noble Lord, Lord Goodhart, has advanced, that in such circumstances, it is not just consultation that is desirable, but consent as well.
  Viscount Bledisloe: When someone is normally invited to be a member of a panel, obviously he or she must consent. Does that also apply to a judge, or is it implicit that because a judge is a paid public servant, provided the head of his division will send him off, he is bound to take on the inquiry? Or is he entitled to say, "No, I came here to try commercial cases, I do not want to spend three years discussing past affairs in Ireland"?
  Lord Borrie: I suppose that the English Bar and Bench is somewhat larger than the Scottish, and can perhaps afford to give some judicial time to the sort of
  GC 244
  inquiries that we are talking about. None the less, the noble Lord, Lord Goodhart, made some important points.
  He has not raised, but I suppose it is relevant to the question generally, the argument that is sometimes put that judges, as distinct from people from other categories of life, are over-used for inquiries, sometimes on matters of considerable public and political controversy. There is a risk that the judiciary as a group are prejudiced by being dragged into issues that can be politically controversial.
  The amendment proposed by the noble Lord, Lord Goodhart, does not raise that, but he raised an important point as to the use of the judiciary, possibly against the wishes of the relevant judge who must be consulted under this clause; the senior Law Lord, or the Lord Chief Justice. Also, there is, of course, at any one time a statutory limit to the number of judges at any particular level that can be appointed. There is a need for statutory alteration if the maximum is to be raised. If out of the limited number of Law Lords, whatever it is—say, 12 at the moment—two are engaged on very lengthy inquiries, and the Government cannot increase the number of Law Lords by two because the maximum is already reached, that is, in addition to the point that the noble Lord, Lord Goodhart, makes, a serious problem.
  The only query I have about whether we should support this amendment, or a similar one, concerns the following. Do consultation, and the consent of the individual being asked to conduct the inquiry, mean— this is rather similar to the question asked by the noble Viscount, Lord Bledisloe—that the individual will almost certainly ask the head of his division and the relevant senior judge, so that in practice consent anises out of the consultation? The amendment of the noble Lord, Lord Goodhart, raised the matter. It should help to get greater clarity from the Minister regarding what is involved.
  Lord Kingsland: Our amendment approaches this matter from a slightly different angle. As your Lordships are well aware, it was, I believe, on 12 June 2003 that the Government decided overnight, literally not metaphorically, that the separation of powers was a crucial doctrine in our constitution. One of the immediate consequences of that is that Lords of Appeal in Ordinary are to be removed from your Lordships' House and placed in a separate building somewhere else in London, lest they be contaminated by the political process.
  If that principle applies to Lords of Appeal in Ordinary, surely it also ought to apply to certain classes of public inquiry. By that I do not mean that there will not remain issues in public inquiries into which it will be appropriate for judges to inquire. But if the Government are to be true to the principle they have been advancing for the past year and a half, they ought to exclude judges in future from presiding over any public inquiry that has either a direct political content or which is likely to have party political implications.

  GC 245
  I would have thought it follows logically from the Government's endorsement of the crucial role that the separation of powers plays in our constitution that it would no longer be possible for a judge to preside over an inquiry which raised issues like those of the Hutton inquiry or the Scott inquiry. It is indisputable that both those judges were engaged to make decisions about the conduct of Ministers who were responsible for crucial aspects of political decision-making. I would be most interested to hear from the Minister whether, in the light of the doctrine of the separation of powers, the Government see a much more limited role for the judiciary in presiding over public inquiries in future.
  I was very struck by the earlier intervention of my noble and learned friend Lord Howe when he advanced the cause of senior members of the legal profession. There may be issues which, on the one hand, merit a judicial chairman, but on the other, go to the heart of the political management of our country. In those circumstances might it not be appropriate for the appointing person, who is likely to be the Prime Minister exercising his powers under the prerogative, to consider appointing a senior practising professional rather than a judge?
  Baroness Ashton of Upholland: I am sure that the Prime Minister will take note of what the noble Lord has said. I would argue that there are two reasons why this amendment is not one that I would be keen to accept.
  Lord Kingsland: Perhaps I may ask the noble Baroness what makes her so sure of that.
  Baroness Ashton of Upholland: I am sure that the Prime Minister holds the noble Lord in the highest esteem, as I do myself.
  I am very clear that it is important that we consult the Lord Chief Justice or the appropriate colleague as in the list in the Bill before the appointment of a judge. That clear need to consult brings with it a requirement to take into account any issues that are raised in that deliberation. The issue of workload, in terms of the numbers of the judiciary and the particular judge, would need to be factored into that. So I am very clear that that is important.
  As the Lord Chief Justice said to the Public Administration Select Committee last month, in practice there is never any difficulty with that. It is almost inconceivable, I believe, that the Lord Chief Justice took the view that a government would appoint a judge against the wishes of the Lord Chief Justice. I am sure that the Lord Chief Justice is correct in that.
  There are two reasons why it is very important that this is a consultation and not a power of veto. The noble and learned Lord, Lord Woolf, said to the Public Administration Select Committee that he recognised that the question of whether the appointment of a judge to an inquiry is in the wider public interest will depend on many factors outside the remit of the Lord Chief Justice. That would include the level of public concern and the nature of the problem that the inquiry is investigating.
  GC 246
  My first contention is that, on the basis that the Lord Chief Justice recognises that there are other considerations—indeed, many Members of the Committee in talking about inquiries today have almost exclusively indicated that they would expect a judge to be in charge, while recognising the eminence of others—there has been a kind of general view that judges play an important role. Not everyone, but many Members of the Committee, have felt that that is appropriate.
  Although I accept what the noble and learned Lord, Lord Howe, said, and what the noble Lord, Lord Kingsland, has just said in reference to what the noble and learned Lord said about senior legal practitioners being able to play an important role, there are and there will be occasions when perhaps those involved in looking at who best might chair or conduct an inquiry would look to the judiciary. On the basis of what the Lord Chief Justice has said, the situation is, "yes, consultation, but not power of veto".
  The second and important point raised by the noble Viscount, Lord Bledisloe, and my noble friend Lord Borrie, is about the role of the individual judge. The noble Lord, Lord Kingsland, talked about the Government's desire, as enshrined in the Constitutional Reform Bill, which now I hope will gallop through another place, that there be that independence. We would recognise that independence in the fact that the member of the judiciary who was being asked to do the inquiry does have and always will have the power to say "no". It is for the individual to decide if they wish to do the inquiry. That is where judicial independence in this context properly lies.
  If the Lord Chief Justice has strong views about other issues, I am sure that there will be a general dialogue. I would not seek to inhibit that in any way. But, ultimately, our view is that the person approached to chair the inquiry or to be a member of the inquiry should be the one who exercises that independence to say "yes" or "no". We believe that it is right to consult with the Lord Chief Justice or the others named within this list, but not to offer them a power of veto. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
  Lord Goodhart: We have had an interesting debate on this. Of course, the noble Lord, Lord Kingsland, although he put down an amendment which was exactly to the same effect as mine, is really raising an argument that is somewhat different from any that I have raised; namely, that there may be grounds for saying that judges should not act as part of an inquiry panel or as sole members of an inquiry panel in cases that are actively political. Certainly the investigation conducted by the noble and learned Lord, Lord Scott of Foscote, was very much political. I am not certain about that myself. I recognise that, particularly when the Lord Chief Justice has become head of the judiciary—if and when the Constitutional Reform Bill comes into force—it will be quite difficult to imagine a judge finding it easy to accept an invitation from the Government if the Lord Chief Justice told him or her that the Lord Chief Justice did not believe that it was the right thing to do.

  GC 247
  Nevertheless, this is something that I should like to consider. I shall decide whether I shall come back with it; perhaps I shall leave it to the noble Lord, Lord Kingsland, to introduce his amendment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 19 not moved.]
  Clause 9 agreed to.
  Lord Evans of Temple Guiting: This may be a convenient moment for the Committee to adjourn until Wednesday 19 January at 3.30 p.m.
  The Committee adjourned at sixteen minutes after seven o'clock.